ABSTRACT
Despite its relatively new origins, the notion and concept of consent to treatment is now regarded in major Western jurisdictions as an essential requirement in any doctor-patient or healthcare professional-patient interaction. In certain jurisdictions, this concept has been labelled ‘informed consent’ or ‘voluntary consent’. As we have seen, day to day transactions will usually be carried out on the basis of implied consent, in the sense that the mere presence of the patient in the waiting room of a surgery or hospital or clinic, followed by such actions as holding out an arm when an injection is suggested by the healthcare professional dealing with the patient, or by impliedly agreeing to a medical examination by loosening clothing after receiving a request to do so prior to a medical examination, or allowing blood pressure to be taken, or to indicate agreement to a medical procedure, no matter how simple or commonplace, are all actions which the law in most ‘developed’ jurisdictions would recognise as signifying consent. Studies indicate that ‘[i]t is accepted in all major jurisdictions that the legally valid consent of the patient is an essential prerequisite to almost all medical treatment and diagnosis’ (Giesen (1993)). The importance of the process by which consent is given or withheld was recently reaffirmed in the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (European Treaty Series/164, 4.4.1997). This was opened for signature in April 1997 (see McLean, S, Consent and the Law: Consultation Document, 1997, HMSO, p 6). The Council of Europe is composed of 40 Member States and promulgates Conventions within its areas of competence to which it expects Member States to subscribe. Article 5 of the Convention states: ‘An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.’ The Convention also mandates, in Art 6.1, that, subject to specified exceptions: ‘… an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.’
