Information disclosure, consent to medical treatment and the law

Medicine plays an important role in human life It may serve to enhance or re-establish the health of an individual, and may shape the extent to which he or she can participate in the essentials of life Thus, it may predict or assist in the level of self-determination which a person may exercise It is argued here, however, that self-determination is also an important value within the medical act, and that - albeit unwittingly - medicine and its practitioners may also effectively reduce the individual's capacity for autonomy by withholding information which is important for the patient's capacity to make knowing and free decisions Thus, an attempt is made to establish that there is, or should be recognised, a right to information - a right which belongs to the patient and which is a precursor of the doctor's corresponding duty to disclose Indeed, it is argued that such a right is currently recognised as having importance However, from the perspective of the individual, if this right is to have concrete meaning, it must be capable of effective vindication Having sought to establish the value of the right, and its pervasiveness, certain special categories of patient are considered in more depth - namely, the mentally ill, the mentally handicapped and children - since it is conceded that, if the right described does not apply to these groups then its very universality is threatened and its standing in the hierarchy of important interests may be minimised It is concluded, however, that the law at present does not deny the value of autonomy in medicine even in respect of these groups who might otherwise be thought to be vulnerable to denial of autonomy A comparison of different legal systems shows fluctuations in the extent to which protection is offered, but it is not doubted that value is placed on extending this right to these groups It is asserted, therefore, that the law does not and need not approach even these most complex situations without bearing in mind the crucial significance of the right and demanding considerable justification for its denial Whilst acknowledging that many disputes are settled outside of courts of law, it is argued that the role of the law cannot be underestimated, since even out of court settlements are generally made only after known legal criteria are met Thus, it is claimed, if the patient's right is to be acknowledged then it should be given a legally recognised status Moreover, it is crucial that an appropriate form of action is made available for vindication of any right Thus, the thesis goes on to examine the major legal actions available - assault, negligence and no fault liability Comparisons are made with the systems and decision-making approaches of courts in Scotland, England and the United States, with some reference also to Canadian judgements Particular account is also taken of the Accident Compensation Scheme in New Zealand It is concluded that current legal approaches are relatively unsatisfactory in terms of their capacity to give precedence to the rights of patients Dissatisfaction with these systems stems from two sources in some cases (e g negligence) the pattern of decision-making described is essentially inimical to the demand for information disclosure In others (e g assault and the no fault system in New Zealand) there are structural difficulties which ensure that rights vindication cannot uniformly be achieved The thesis concludes by tentatively hypothesising alternative strategies for the law, which would permit the serious attention, which it is argued is merited by this right, to be extended to it It is suggested that there are a number of possibilities available if the law is prepared to acknowledge the value of the right described In Scots law, the actio injuriarum may provide a possible source of redress, whilst in English law the uncertainties surrounding the manner in which tort law has developed make it more difficult to envisage radical reform However, the negligence action remains a possible source of redress for grievances a) if the purely professional aspects of the physician's role are separated from the moral obligations imposed on any professional to respect the integrity of his or her client, thus permitting decision-making which reflects the source of the harm rather than concentrating on the technical conduct of therapy, and b) if the law concedes the value of self-determination in medicine