Quoting from the RCVS Code of Professional Conduct at paragraph
11.1 - that “Informed consent, which
is an essential part of any contract, can only be given by a client who has had
the opportunity to consider a range of reasonable treatment options, with
associated fee estimates, and had the significance and main risks explained to
them.” Unfortunately, the RCVS is
wrong in the assertion that informed consent constitutes any part of a contract.
A contract is comprised of four component parts: an
offer, an acceptance, consideration and an intention to create legal relations.
The offer and acceptance together constitute the agreement. The consideration
has a specific legal definition, but simply put, it is the exchange of
promises; the veterinary surgeon promises to perform an operation and the
client promises to pay for the work that is done. The intention to create legal
relations is a rebuttable presumption in any commercial undertaking.
As was stated
in the case of Chatterton
v Gerson, [1981] 1 All ER 257, a lack
of informed consent as to the risks
inherent in a medical procedure does not vitiate the patient's consent to it,
provided he knows its nature in broad terms. Additionally, as per Lord Diplock, Lord Keith and Lord Bridge
in the case of Sidaway v Governors of
Bethlem Hospital [1985] 1 AC 871, English law does not recognise the
doctrine of informed consent.
This does not mean that there is not a legal (and moral) obligation
to inform the client so that they are able to make a balanced judgment. But,
failure to do so would not invalidate the contract. Any liability would not lie
in surgical trespass but in the tort of negligence. Negligence in the duty to
inform would only be an issue if it were shown that the client would not have
consented had they had fuller information.
The law on the duty to warn is not controversial, Lord
Bridge of Harwich in the Sidaway case
said “when questioned by a patient
of apparently sound mind about risks involved in a particular treatment
proposed, the doctor's duty must be to answer both as truthfully and as fully
as the questioner requires.” In the same case it was made clear that this was
primarily a matter of clinical judgment. Lord Templeman said, “…it was for the
doctor to decide what information should be given to the patient and the terms
in which that information should be couched.”
It is
important to be empathetic with the client; to be open and accommodating in
answering any questions that the client may have. That is not the same as
burdening the client with information that they either do not need or, in many
cases, do not want to know about. The vet/client relationship is one that is
based on trust and understanding that, in many cases, would have been built
over a number of years. The vet’s role is to guide the client through the
process of their pet’s illness and to, benignly, use their Aesclepian
authority.
Empathy requires that one should be responding to the
client’s needs and not just passing over a prescribed list of possible adverse
consequences. “The decision on what risks should be disclosed for the
particular patient to be able to make a rational choice whether to undergo the
particular treatment recommended by a doctor was primarily a matter of clinical
judgment” (Lord Templeman). In Bolam v Friern Hospital
Management Committee [1957] 2 All EWR 118 it was held that, “the doctor could not be criticised if, believing
the dangers involved in the treatment to be minimal, he did not stress them to
the patient.”
Of course, I agree with the tenor of the RCVS statement; after all effective communication is an essential ingredient to the "art" of veterinary medicine. Most veterinary surgeons and, indeed, veterinary nurses do a superb job of informing clients of the treatment options and consequences of such treatments that their pets may have to undergo. This is done at a time when the client is usually under some stress and feeling anxious. They will often be relying on the veterinary team for some emotional support. The veterinary surgeon or nurse should not feel compelled or constrained as to what information is passed onto the client on the basis of a legal doctrinal fallacy.
VJ(c)2013
VJ(c)2013
