Voluntariness
Patients overtly coerced into undergoing treatment they plainly do not want can rightly claim that their “consent” was not given freely and is therefore not valid. Cases of overt coercion are rare, but there are many circumstances in which patients may feel that they have been covertly pushed into accepting treatment they would prefer not to have had. For example, patients may sometimes find it very difficult to say “No” to the proposed treatment, or to challenge the doctor’s assumption that they would have no objections to going ahead, so it is best to check that they have no misgivings before proceeding.
Patients who are detained by the Gardaí, Immigration Services, Prison Authorities or under mental health legislation may be particularly vulnerable, and under these circumstances you should try to ensure that they are aware that they can refuse treatment if they so wish.
Patients may sometimes find it very difficult to say “No” to the proposed treatment, or to challenge the doctor’s assumption that they would have no objections
Adult patients detained under the Mental Health Act 2001 do not lose their right to consent to treatment, except where the responsible consultant considers the patient incapable of giving consent for treatment that is “necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering”.9 Special conditions apply for psychosurgery and ECT, and for extending a medication regimen beyond three months.10
Scenario 3
Mr H is a plasterer in his late 40s. He has been experiencing pain in his left knee, on and off, for several years, but this has been adequately managed with a combination of physiotherapy and NSAIDs. One day, he comes to see his GP, Dr J, complaining of intense pain and limited movement in his knee. Dr J, noting Mr H’s history and finding, on examination, that the knee is slightly swollen, recommends an intra-articular injection of Kenalog. As he is aware that Mr H is self-employed and needs to be able to return to work as soon as possible, he suggests that he administer the injection there and then.
Mr H is doubtful about having an injection straight into the joint, but Dr J brushes aside his doubts, saying that it will get him “up and running in no time”. He points out that it is unlikely he will get another appointment at the practice until the following week, which will only delay his recovery. Mr H reluctantly acquiesces, and allows Dr J to administer the injection.
Unfortunately, he subsequently develops septic arthritis in the joint. Although this is successfully treated with antibiotics, he loses several more weeks’ work and decides to sue Dr J for compensation. His claim alleges invalid consent, not only because he had not been warned about the small risk of infection, but because he had felt coerced into making a hasty decision.