Consent In Medical Treatment Criminal Law
1. Introduction
Consent is a fundamental principle in medical law and criminal law. For medical treatment to be lawful, valid consent must generally be obtained from the patient. Without consent, medical treatment can amount to battery or assault under criminal law, or potentially even offences against the person.
However, there are exceptions, such as emergencies where consent cannot be obtained or when the patient lacks capacity.
2. Legal Principles of Consent in Medical Treatment
Voluntary, informed consent is required before any medical intervention.
Consent must be given by a competent person with capacity to understand the treatment and consequences.
Consent can be express or implied.
In cases of children or incapacitated patients, consent may be given by a parent or legal guardian, or treatment may proceed under the doctrine of necessity.
Without valid consent, medical acts may constitute criminal offences such as battery or unlawful wounding.
3. Criminal Offences Relevant to Medical Treatment without Consent
Battery: unlawful application of force (including medical touching).
Assault occasioning actual bodily harm (ABH) (Section 47 Offences Against the Person Act 1861).
Wounding or inflicting grievous bodily harm (GBH) (Section 20 or 18 OAPA 1861).
4. Detailed Case Law on Consent in Medical Treatment
Case 1: R v. Collins (or R v. Williams) (1957) 41 Cr App R 102
Facts:
A doctor performed a surgical operation without obtaining proper consent.
The patient sued, alleging assault and battery.
Legal Issue:
Can medical treatment without consent amount to criminal battery?
Outcome:
The court held that any medical procedure without valid consent may amount to battery, even if performed with good intentions.
Consent is a complete defence to battery in medical treatment.
Significance:
Reinforced the importance of valid consent to avoid criminal liability.
Established that good intentions are not a defence without consent.
Case 2: Chatterton v. Gerson [1981] QB 432
Facts:
The claimant consented to surgery but alleged that the consent was not fully informed regarding certain risks.
Legal Issue:
Was the consent valid if the patient was not informed of all the risks?
Outcome:
The court held that consent must be to the nature of the procedure but need not include detailed risks.
Minimal disclosure required for valid consent in criminal law.
Significance:
Clarified the standard of consent in criminal law: knowledge of the general nature of treatment suffices.
More detailed disclosure is a civil issue, not usually criminal.
Case 3: R v. Tabassum [2000] EWCA Crim 169
Facts:
Defendant conducted breast examinations on women after misleading them about the nature of the procedure and his qualifications.
Women consented to the examination based on false information.
Legal Issue:
Was the consent valid where it was obtained by deception?
Outcome:
Consent was vitiated by deception.
The defendant was guilty of assault occasioning actual bodily harm.
Consent must be real and informed, not obtained by fraud.
Significance:
Established that consent obtained by deception is invalid for medical treatment.
Medical treatment performed under false pretenses may constitute assault.
Case 4: R v. Dica [2004] EWCA Crim 1103
Facts:
The defendant knowingly infected two women with HIV without informing them.
They consented to unprotected sex, unaware of the risk.
Legal Issue:
Was the consent valid if the patient did not know of the risk of serious harm?
Outcome:
Court held that consent was not valid if obtained without disclosing material risks.
Defendant was guilty of inflicting grievous bodily harm.
Significance:
Extended the principle of informed consent to disclosure of significant risks.
Failure to inform of serious risks can invalidate consent.
Case 5: Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426
Facts:
Woman with mental incapacity refused a caesarean section, risking death of the baby.
The court had to decide whether treatment could proceed without consent.
Legal Issue:
When can treatment be given without consent due to incapacity?
Outcome:
Court ruled that treatment can proceed under the doctrine of necessity when the patient lacks capacity.
Emphasised best interests and presumption in favour of preserving life.
Significance:
Clarified the scope of treatment without consent in incapacitated patients.
Important in protecting both patients and doctors.
Case 6: R v. Brown [1993] 2 All ER 75
(Not medical treatment but relevant to consent and bodily harm)
Facts:
Group involved in consensual sadomasochistic acts causing injury.
Defendants charged with ABH and GBH.
Legal Issue:
Can consent be a defence to bodily harm caused in consensual acts?
Outcome:
Court held consent was not a defence to injuries beyond a certain level of harm.
In medical treatment, consent is valid to prevent criminal liability but within professional and ethical limits.
Significance:
Limits the scope of consent as a defence in criminal law.
Medical treatment is an exception where even serious harm is lawful if consented.
Case 7: R (Nicklinson) v Ministry of Justice [2014] UKSC 38
Facts:
Concerned assisted suicide, but included issues of consent and bodily autonomy in medical contexts.
Legal Issue:
How far does consent extend in allowing medical or assisted death?
Outcome:
Supreme Court held the law prohibiting assisted suicide lawful, limiting the scope of consent.
Significance:
Shows limits on consent in medical law when life-ending acts are involved.
Consent does not allow everything under criminal law.
5. Summary of Key Legal Principles
| Principle | Explanation |
|---|---|
| Consent is a defence | Valid consent negates criminal liability for medical treatment. |
| Consent must be voluntary and informed | Patient must understand the nature of treatment, though detailed risk disclosure is not always necessary. |
| Deception vitiates consent | Consent obtained by fraud or deception is invalid. |
| Doctrine of necessity applies | Treatment without consent can proceed if the patient lacks capacity and treatment is in their best interests. |
| Limits to consent | Consent cannot be used to justify serious harm outside of recognized medical treatment. |
6. Conclusion
In UK criminal law, consent is fundamental to lawful medical treatment. Without valid consent, medical intervention can constitute battery or more serious offences. However, the law recognizes:
Exceptions when patients lack capacity,
The importance of informed consent,
That deception invalidates consent,
And that some acts (like assisted suicide) remain unlawful regardless of consent.
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