BY O.M. ATOYEBI, SAN FCIARB.(U.K)
CONTRIBUTOR: TOBENNA MOGBO
INTRODUCTION
Generally, an individual’s right to life and dignity of a human person have been guaranteed and protected by law.[1] Local and international laws and regulations recognize the right to life of an individual.[2] This portrays the respect given to the sanctity of human life, making these rights sacrosanct. However, in specific circumstances as recognized by law, consent duly given is an exception in which case, these rights can be adjusted. Consent in this regard is seen as an individual’s right to self-determination.[3] It is in light of the above, that the importance of consent in a doctor-patient relationship will be examined.
UNDERSTANDING THE CONCEPT OF INFORMED CONSENT
Given the fundamental nature of an individual’s right to life and dignity of human person, it is important to have a full grasp of the concept of consent which serves as an exception to the sacrosanct nature of these rights particularly in relation to medical treatment which is the focus of this article.
Consent simply means to agree. Thus, in medical practice, consent connotes the agreement of a patient to a particular treatment, therapy or any other health management strategy. Consent is the act of giving approval to what is done or proposed to be done. This unveils the fact that a patient inherently has the right to accept or reject treatment.[4]
Consent in some regard can be referred to as the patient’s right to self-determination. It has been held in the case of Re: Mb (Medical Treatment)[5] that notwithstanding the right of an individual to life, the right to self-determination supersedes the right to life. This underscores the importance and weight consent has in medical practice.
In medical law, not all kinds of consent are valid. One of the fundamental requirements a valid consent must satisfy is that it must be an informed consent. Informed consent essentially connotes consent that is obtained after necessary information relating to the available treatment options, applicable risks, benefits and possible complications have been communicated to the patient. In essence, informed consent dictates that before a patient agrees to a particular treatment, he must be made aware of all the risks and benefits of the treatment options i.e. he must be empowered with knowledge by the medical practitioner to make informed decisions on his health. This position was emphasized in the case of Montgomery v Lanarkshire Health Board,[6] where the court held that a medical practitioner is obligated to make sure that patients are aware of any material risks involved in treatment and any reasonable alternative treatment options.
TYPES OF CONSENT
Express Consent
This is the common and most accepted form of consent. Consent ought to be express, unequivocal, and unambiguous for it to be valid. This is the basis of explaining the procedure to the patient in a language that he understands.
While consent could be implied in some instances, some specific treatments require express consent before a medical practitioner can go ahead with it. One of such was stated in the case of Davies v Pratt[7] where the court observed that in a medical procedure that involves the removal of a vital part of a patient’s body, express consent must be obtained. This was also the holding of the court in the case of Dr Rom Okekearu v Danjuma Tanko.[8]
Implied Consent
As opposed to express consent which is a positive act of the patient, implied consent is inferred from the conduct of the patient without any form of written or verbal agreement to the treatment.
This is common in cases where the patient is unconscious and the medical practitioner is acting in his professional capacity in good faith.
Consent by Proxy
Generally, consent by proxy is not deemed valid except as provided by law or as laid down by the court. Consent can be given by proxy where it is given by a relation of the patient or by an authorized public authority.
Consent by proxy can be valid in the following circumstances:[9]
- where the patient is below the minimum age requirement (below 18 years)
- where the patient lacks the mental capacity to give consent or
- where the patient is unconscious.
REGULATIONS ON INFORMED CONSENT
Informed consent is generally provided for under the laws regulating medical practice in Nigeria. The recognition of informed consent in regulations shows that the requirement of informed consent in medical practice is not just an ethical obligation but a legal obligation, a breach of which may lead to sanction. These regulations include:
The Code of Medical Ethics[10]
The Code provides the rules of professional conduct for medical and dental practitioners. One of guidelines provided for in the Code is informed consent clearly described in Rule 19 of the Code. According to the section, consent can either be obtained from the patient directly, his relative or from designated public authority. However, consent by relation or authorized public authority is only allowed in cases where the patient is underaged (below 18 years), unconscious, or is in a state of mind constituting a mental impairment.
Consent must be in writing or printed format so as to prevent issues that may arise in cases where consent cannot be ascertained in a tangible format. The section also states that prior to obtaining consent, a medical practitioner has the duty of explaining the procedure to the patient in simple, concise and unambiguous terms. The benefits and risks involved in the procedures should be well laid out to the patient. Proper counseling should also be given to ensure that the consent is an informed one. The section specifically provides that consent must be obtained to carry out diagnosis, surgery, screening and research, and the failure of a medical practitioner to obtain consent may amount to assault to the person of the patient.
The National Health Act[11]
The National Health Act was enacted in 2014 to provide a framework for the regulation and rendering of health services in Nigeria. Section 23 of the Act provides for the right of a user to have full knowledge of the state of his health and the necessary treatment.
In the light of the provision of this Act, informed consent entails giving consent based on full knowledge of health status, the available diagnostic and treatment options, risks, benefits, cost, consequences involved in the procedure and the right of the patient to refuse treatment. This section further underscores the supremacy of a patient’s right to self-determination above that of his right to life.
The Medical and Dental Practitioners Act[12]
This is another legislation governing medical practice. It established the Medical and Dental Practitioner Disciplinary Tribunal (MDPDT) which ensures compliance with rules of professional conduct and prescribing sanctions for erring members. This includes prescribing sanctions for members who fail to comply with the relevant consent requirements.
In line with the recognition of a patient right to self-determination in either consenting to treatment or otherwise, the court in MDPDT V Okonkwo [13]has recognized the right of a patient to either consent to or refuse medical treatment and the obligation of the medical practitioner to respect the patient’s choice notwithstanding how detrimental it may be to the health of the patient.
The case underscored the importance of informed consent in medical practice as it was the evidence of the voluntary consent of the patient that exonerated the medical practitioner from liability for professional misconduct.
IMPORTANCE OF OBTAINING INFORMED CONSENT
Ethical Medical Practice
It is imperative on a medical practitioner to ensure that he not only carries out his obligation of catering for the wellbeing of his patient but the same must be done ethically to avoid being charged and sanctioned for professional misconduct. Sanctions can range from fine to losing of practicing license. This is the reason medical practitioners must ensure that they are ethically compliant in the aspect of obtaining informed consent in the manner prescribed by law.
Protection of Fundamental Human Rights
It is important for medical practitioners to ensure that they obtain the consent of patient to avoid breach of the fundamental rights of the patients as provided for by the constitution such as the right to life (in cases of medical treatment leading to death as seen in the case of MDPDT V Okonkwo[14]), right to dignity of human person (in cases where there is invasive treatment or surgery) and right to privacy. Since it is an established principle of law that volenti non fit injuria which means that to a willing person no injury is done, any act done to a person that infringes on any of these rights could be justified on the basis of consent.
Recognition of Patient Autonomy
Obtaining informed consent by a medical practitioner from a patient is important as it ensures patient autonomy. A patient cannot be offered medical care against his wish as it can lead to violation of his right to human dignity. It has been regarded as battery in the case of Mallete v Shulman[15] while the Code of Medical Ethics refers to such a violation as assault[16].
CONCLUSION
The importance of informed consent in a doctor-patient relationship cannot be overemphasized as it is what gives the medical practitioner the legal right to provide treatment to a patient. Notwithstanding the effect of non-treatment in cases where consent is not given, medical practitioners must ensure that this ethical standard is complied with to avoid liability and breach of the patient’s right to self-determination.
REFERENCES
- Section 33 and 34 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) ↑
- Examples of these Regulations include: CFRN 1999 (as amended), African Charter on Human and Peoples’ Rights, Universal Declaration on Human Rights. ↑
- Schloendorff v. Society of New York Hospital 105 N.E. 92 where the court ruled that every human being of adult years and sound mind has a right to determine what shall be done with his own body. ↑
- Re C (Adult, refusal of treatment) [1994] 1 All ER 819 where it was held a competent adult has the right to refuse medical treatment. ↑
- [1997] 38 BMLR 175 (CA) ↑
- [2015] UKSC 11. ↑
- [1906] 79 N.E. 562. ↑
- [2002] JELR 44538 (SC). ↑
- Rule 19 of the The Code of Medical Ethics ↑
- MDCN (2008). The Code of Medical Ethics in Nigeria. Medical and Dental Council of Nigeria, Abuja. ↑
- National Health Act, 2014 (Act No. 8 of 2014) ↑
- Medical and Dental Practitioners Act CAP M8 ↑
- [2001] 7 NWLR (Pt. 711) 206 ↑
- [2001] 7 NWLR (Pt. 711) 206 ↑
- [1990] 72 O.R. (2d) 417 (Ont. C.A.) ↑
- Rule 19 of The Code of Medical Ethics. ↑
Source: loyalnigerialawyer
