Alleged Medical Malpractice: Time Is Nigh To Adopt Informed Consent 

By Ruwan Laknath Jayakody –JUNE 11, 2019

Ruwan Jayakody

For patients in Sri Lanka, the medical profession, for the most part, unless due to ignorance or naivety concerning the complexities of diagnosing and treatment, or some genuinely ghastly tale of horror and woe experienced at the hands with the healing touch, generates reverence and to its practitioners, especially the doctors, is bestowed godlike status, and afforded godly veneration with all the associated spoils. Thus, any breach of this duty of care, is deemed tantamount to a mortal sin. A crisis of this magnitude is presently unfolding in two State/Government Hospitals in the Kurunegala and Dambulla areas, where a doctor is alleged to have performed a procedure on hundreds of women seeking to be mothers for the second time, which rendered them sterile and thus unable to conceive a second time. Whilst a criminal investigation is presently underway and a full blown political and media circus is in parallel going gung ho, all guns blazing, the situation beggars a long term solution for the health care service sector in general, a solution which lies in informed consent.

The adoption by the Lankan judiciary of the relevant principles expounded in Montgomery v. Lanarkshire Health Board decided by the Supreme Court (SC) of the United Kingdom (UK), primarily that of informed consent, will not only help to protect patients autonomy and their right to self determination but also increase healthcare standards and preserve the medical profession’s sanctity. This latter view was put forward by legal researcher G.D. Gunawardena in his research paper ‘Implications of adopting the principle of Informed Consent in Sri Lankan Medical Malpractice law: A critical analysis in light of Montgomery v. Lanarkshire Health Board (2015) UK SC 11’, in which he added that it is high time for legal reform or at least judicial review through the expansion of the prevailing principles to afford more predictability and certainty to the law.

Background 

Gunawardena had also interviewed, for the purpose of this research, five practicing doctors, two final year medical students and persons involved in hospital administration. He noted that the said doctors had stated that they usually encountered problems when communicating with the older population of the lower class while on the other hand, youth from the same social class were quite competent with regard to these matters and even those who were less so would understand a procedure once time was taken to explain it to them in simpler terms. The doctors, Gunawardena observed, also indicated that presently, there is increased concern on the part of patients with regard to what treatment is performed and also that they expect a higher standard of care, especially in the private sector.

Further, Gunawardena’s interviews with the practicing doctors revealed that most just mention the name of the procedure or explain it in a single sentence before asking the patient to give their written consent. The doctors had argued that a detailed explanation would prove redundant because a majority of patients in Sri Lanka would not understand and also that such an explanation would usually scare a patient into refusing even low risk treatment. 

Informed consent: The applicable legal regime  

On consent and bodily integrity, physical autonomy and the right to self determination, Justice Benjamin Nathan Cardozo, when in the New York Court of Appeals, in the case of Schloendorff v. Society of New York Hospital (1914) 105 N.E. 92 211 N.Y. 125 wrote that “Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body and a surgeon who performs an operation without his/her patient’s consent, commits an assault”. Incidentally, the Nuremberg Code’s first point when conducting permissible medical experiments is that voluntary consent of the subject is absolutely essential.

Informed consent, on the other hand, as Professor Paul Stuart Appelbaum observed in ‘Assessment of patient’s competence to consent to treatment’, is the process by which the treating health care provider discloses appropriate information to a competent patient so that the patient may make a voluntary choice to accept or refuse treatment. The 1972 United States Court of Appeals for the District of Columbia Circuit case of Canterbury v. Spence (464 F.2d. 772. 782), Judge Spottswood W. Robinson the III was of the view that a doctor must disclose all risks which might materially affect a patient’s decision and thereby founded the doctrine of informed consent in law for the first time even though the jury’s verdict was in favour of Dr. Spence, where the doctor in question had taken the position that the disclosure of minute risks of complication was not sound medical practice since it potentially deterred patients from availing of necessary surgery and had thereby only informed Canterbury that the surgery might result in weakness and omitted to mentioned paralysis, avoiding the more specific warning so as not to deter the patient from pursuing the operation.

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