Report No. 196
Lord Donaldson MR & Butter Sloss LJ held that:
(1) On behalf of a patient who is physically and mentally capable of exercising a choice but who is not in a position to make such a decision because, for example, he is unconscious, his next of kin has no legal right to consent or to refuse consent to medical treatment on behalf of the patient. However, to seek the consent of the next of kin is not an undesirable practice of the interests of the patient will not be adversely affected by any consequential delay, since consultation with the next of kin may reveal that the patient has made an anticipating choice whether to accept or refuse specific treatment and, e.g. a blood transfusion, which if clearly established and applicable in the circumstances, will bind the medical practitioner.
(2) The standard forms of refusal to accept blood transfusion used by hospitals should be redrafted to separate the disclaimer of legal liability (on the part of the hospital) from the declaration by the patient of his decision not to accept a blood transfusion so as to bring the possible consequences of a refusal forcibly to the patient's attention.
(3) A patient should know in broad terms the nature and effect of the medical procedure to which consent is given or refused. But, although doctors are under a duty to give the patient appropriate full information as to the nature of the treatment and the likely risks (including any special risks attaching to the treatment being administered by particular person), failure to perform that duty will only amount to negligence but does not as such vitiate the consent or refusal.
However, misinforming a patient, whether innocently or not, and withholding information which is expressly or impliedly sought by the patient, will vitiate either a consent or a refusa.- (a) If, in a potentially life-threatening situation or one in which irreparable damage to the patient's health can be anticipated, doctors or hospital authorities are faced with a refusal of an adult patient to accept essential treatment, they should both in the public and the patient's interest, at once seek a declaration from the court as to the lawfulness of the proposed treatment and it should not be left to the patient's family to take action.
The learned judges referred to the following passage from the decision of the Ontario Court of Appeal in Mallette v. Shulman: (1990) 72 OR (2d) 417 (a blood transfusion case where it was given to an unconscious patient carrying a card that she was a Jehovah's witness). There Robins JA stated (at p.432):
"At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adults, as I have sought to demonstrate, are generally at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one's body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority."
Robin, JA excluded from consideration, the interest of the State in protecting innocent third parties and preventing suicide.