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Case Law on Informed Consent. Kennedys Healthcare Department. Introduction.

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case law on informed consent

Case Law on Informed Consent


Healthcare Department


Medical practitioners owe a duty to ensure thatconsent is obtained in respect of medical and surgical treatment which involves interference with the human body or the application of substances, such as drugs and other medicine or X-rays, for instance, to the human body.

principles of consent
Principles of Consent
  • The patient must be legally competent to give consent
  • The consent must be freely given
  • The patient must have sufficient information to make an informed decision


Consent must be obtained before a medicalpractitioner examines or treats

  • Can the patient comprehend and retain information as to the nature, purpose and effect of the proposed treatment, especially as to the likely consequences of accepting or refusing the treatment?
  • Can the patient believe and weigh such information in the balance when making a choice?

An adult patient might lack capacity because of mental disorder, unconsciousness or be temporarily incapacitated by the effect of fatigue, shock, pain or drugs.

Re MB (Caesarean Section) (1997) 38 BMLR 175

Re C (Refusal of Medical Treatment) [1994] 1 All ER 819 (Fam Div)


A competent pregnant woman may refuse any treatment, even if this would be detrimental to the fetus.

St George’s Healthcare NHS Trust v S (1998) 44 BMLR 160

Hospital Authority v C [2003] 1 HKLRD 507

“The law…is that a fetus, up to the moment of birth, does not have any separate interests capable of being taken into account by a court considering an application to perform a caesarean section on a pregnant woman carrying the fetus. In short, a court does not have jurisdiction to declare medical intervention lawful solely to protect the interests of an unborn child."



There is no presumption that children under the age of 18 have thecapacity to decide and give consent to treatment.However, it does not mean that a child must be lacking capacity.

The test is whether the child has sufficient understanding and intelligence to enable him to understand fully what is proposed.

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security[1985] 3 All ER 402

“ … as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”


A child’s refusal of treatment might, however, be overridden by the parents or a clinician if the treatment is judged to be in the child’s best interests.

Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627

Re S (A Minor) (Consent to Medical Treatment) [1994] 2 FLR 1065 (Fam Div)

Mentally Incapacitated Person

Part IVC of the Mental Health Ordinance governs the situation where a mentally incapacitated adult within the meaning of the Ordinance is incapable of giving consent. A MIP is incapable of giving consent when that person is incapable of understanding the general nature and effect of the treatment or special treatment.

undue influence
Undue Influence

The patient must not be unduly influenced in making a decision. Undue influence occurs when the decisionarises not from the patient’s own will, but from the will of others.

Re T (An Adult: Refusal of Treatment) [1992] 4 All ER 649

informed consent
Informed Consent

A medical practitioner has a duty to exercise his professional judgment and skill to ensure that the patient possesses sufficient information to make an informed choice.

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871


A doctor’s duty to disclose risks

“I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences as, for example, the 10% risk of a stroke from the operation…”

Bolam test
  • “Substantial risk of grave adverse consequence”
  • General v Special risks
  • Bolitho v City and Hackney Health Authority [1997] 4 All ER 771
Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118

Chester v Afshar (2004)

The doctor, in determining what to tell a patient, has to take into account all the relevant considerations, including the ability of the patient to understand the advice given and the state of the patient at the particular time, both physically and emotionally.

A doctor’s duty to answer questions

If a patient asked questions, it was in principle the doctor’s duty to answer them truthfully.

Blyth v Bloomsbury Health Authority [1993] 4 Med LR 151

Chappel v Hart [1999] HCA 55

A doctor’s duty to advise patients of alternatives to treatment

Chinchen v University Hospital of Wales Health Care NHS Trust (2001)


Dr To Chun Fung v Medical Council of Hong Kong [2001] HKEC 1296