ABSTRACT
It is often assumed that it is a well established principle in English law that consent (in the sense of assent or agreement) needs to be obtained before an adult, mentally competent patient can be lawfully treated by a doctor or health professional. Indeed, it is a commonplace that textbooks on medical law, family law and tort law often begin expositions of the law relating to consent with a reference or quotation from the 1914 American case decided by Cardozo J wherein he said: ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body …’ (see Schloendorff v Society of New York Hospital, 105 NE 92 9 (NY, 1914)). This case is often seen as heralding the development of the doctrine of ‘informed consent’ in the USA, although the seeds of the doctrine properly so called were sown in the USA from around 1957 in Salgo v Leland Stanford Jr University Board of Trustees, 154 Cal App 2d 560, 317 P 2d 170 (1957) (for a full discussion of the American developments, see Chapter 10 of this book). But, as far as the English rules on judicial precedent are concerned, Schloendorff is an American case and is, therefore, not binding on English courts and remains only of ‘persuasive’ authority, although it is still cited frequently in many textbooks on English medical law. So, how has the notion or version of ‘informed consent’ to medical treatment become part of English law?
