totally incapable of making a decision to consent or refuse consent. However ,in
the later case ofRe T?1992) the Court of Appeal held that the capacity of an adult
patient is to be judged by reference to the particular decision to be made. This is
surely right. If a patient is capable today of understanding what treatment is
proposed the fact that yesterday she was not capable of understanding should not
affect her right to make a decision. This approach is confirmed byRe MB?1997).
7.1.5 Criminal law and consent to treatment
As a general rule if a patient gives consent to a medical procedure being under-
taken then no criminal liability will result. But the fact that consent has been given
does not automatically mean that the treatment itself is lawful. The individual does
not have absolute freedom in English law to do what he or she wishes with his or
her body [14]. Some medical procedures such as female circumcision are expressly
prohibited by statute [15]. Uncertainties surround the legality of certain other
medical procedures [16]. For example ,while it appears that as long as organ
transplant operations do not constitute an unjustified risk to the life of the donor
they will not be held to be unlawful [17] ,the lawfulness of animal to human
transplantations is still to be resolved [18].
Where a major operation is undertaken without consent there is the possibility
of a prosecution under section 18 of the Offences Against the Person Act 1861.
This section makes it an offence to `unlawfully and maliciously' cause grievous
bodily harm to a person with the intention of causing grievous bodily harm.
However it is more likely that a nurse who has given treatment without the
patient's consent will be prosecuted for the less serious crime of battery. This
makes unlawful any non-consensual touching [19].
7.2 Civil law liability
7.2.1 Battery
While treating without obtaining the patient's consent may lead to a criminal
prosecution ,it is far more likely that absence of consent will lead to an action in the
civil courts. First ,an action may be brought in the tort of battery. An action in
battery arises if a patient is touched without her consent. Not every touching will
lead to liability ,for example an action is unlikely to result from the nurse
accidently brushing a patient's shoulder as she passes in a corridor. There is no
need to prove that the touching caused damage ± the fact that it took place is
sufficient for an action to be brought.
InChattertonv.Gerson?1981) Mr Justice Bristow held that no liability would
arise as long as the patient was informed and understood in broad terms the
nature of the procedure which it was proposed to undertake ,and she had given
consent. If a broad general consent is given then any further claim that a patient
has been given inadequate information should be brought not in battery but in
negligence [20].
Consent and the Capable Adult Patient 103