Consent to medical treatment and the competent adult

• Main Author: Maclean, Alasdair Rhuairidh
• Published: University of Glasgow 2006
• Subjects: 344.410412; K Law (General)
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.438107

In this thesis I analyse the concept of consent to medical treatment. I explore its ethical basis in autonomy and examine how other principles and ethical approaches might interact with the rules derived from autonomy. I then situate the relevant ethical obligations within the context f the healthcare professional-patient relationship which subsequently allows me to develop a textured model of consent. The model is predicated on the theory that consent is a secondary right, derivative on the underlying right which it controls. By giving or withholding consent, the autonomous person determines who may justifiably infringe the primary right. Importantly, however, the context of the professional-patent relationship highlights the relevance of consent, not just as permission, but also as agreement. I subsequently utilise the model of consent to analyse the current law, which is found to be deficient. I explore the conceptual difficulties of the split regulation between the torts of battery and negligence. I examine the current standard of disclosure and conclude that while it seems to be moving towards more autonomy respecting prudent patient standard, the courts may still be affording expert witnesses too much say in determining which risks should be disclosed. Most importantly I expose the thin and unsatisfactory conception of autonomy that appears to ground the current legal approach. Some of the common law’s deficiencies lie in tort law’s focus on the outcome rather than the process of the interaction between healthcare professional and the patient. There are three responses to these deficiencies. The common law could be allowed to continue its piecemeal development. The deficiencies of the common law could be patched up by developing professional regulation, or new legislation could be drafted to deal specifically with consent to medical treatment. If there is a genuine commitment to patient autonomy and patient centred care then I submit that legislation is justified.