Consent according to Black’s Law dictionary (8th Ed) is the ‘Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent.’
Article 43 (1) (a) the Constitution of Kenya provides that:-
“Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care”
Sub-article (2) states that “A person shall not be denied emergency medical treatment.”
- Before a medical practitioner/professional places a patient under treatment, or any medical procedure, they need to procure informed consent from the patient.
- Informed consent is valid if the patient understands their ailment, the procedures the medical practitioner are going to use in the treatment, benefits, risks of the procedure and the patient must have the capacity (or ability) to make the decision (consent).
- In the book ‘Take the Risk’ (2007) by the renown Neurosurgeon Ben Carson, he writes that he explained to his patients, the famous ‘Bijani Twins’ who were two ladies born conjoined at the head, the various steps and procedures that would be involved in a brain surgery that would seek to separate them. He had a translator who translated his statements to the twins. According to his book, he told them, “Based on my experience and my study of your case and despite the excellent resources available to your fine surgical team here at Raffle Hospital, I still think there is at least 50 percent chance this surgery could result in death or serious brain damage for one or both of you. I need to make sure you both understand that”.
- He writes “…Any operation with as much as 10 percent chance of mortality would be considered an extraordinary dangerous procedure – a sky high risk. So a 50 percent risk is truly stratospheric. I wanted to be sure Ladan and Laleh understood the risks.”
- The twins contrary to the opinion insisted on the surgery which was unfortunately unsuccessful and twins lost their lives. Ben Carson was reported to state that “he never thought the operation had a reasonable chance of success, and claimed the team made ‘a great deal of effort’ to try to talk the twins out of it.”
- Once the Patient agrees to go ahead with a procedure or treatment contrary to the medical practitioner’s advice, then the Medical Practitioner is relieved of any liability or eventualities that were foreseen such as death.
In the case of BS v Jonardan D. Patel [2019] eKLR
The plaintiff contended that she did not sign the consent for the two surgeries that were done by the defendant. She relied on the case:-
Sidaway V. Bethlem Royal Hospital Governors & others (1985) 1 AII E.R. 643 where Lord Scarmon at page 649 stated:
“A doctor who operates without the consent of his patient is, save in case of emergency or mental disability, guilty of the civil wrong of trespass to the person and he is also guilty of the criminal offence of assault”……A patient has the right to be informed of the risks inherent in the treatment which treatment is proposed”
The court noted:-
The plaintiff has also relied on the Code of professional conduct and discipline issued by Medical Practitioners and Dentist Board of Kenya which states that, consent is the acceptance by an individual person to receive treatment from a doctor. The individual giving consent must be mentally competent and aged 18 years, informed, free and voluntary……the defendant contended that the plaintiff being an optometrist had some knowledge in the medical field and she was taken to have granted the defendant her consent by accepting to be admitted in hospital. The defendant averred that he explained the nature of the surgeries to the plaintiff by way of diagrams which were produced as an exhibit.
The court held that;
In my view, it matters not that the plaintiff is an optometrist by profession. The requirement of a consent is a requirement before a surgery can be undertaken and failure by the defendant to obtain the required consent from the plaintiff cannot be excused.The defendant was given time by the court to produce the consent but eventually it was never availed to court. The defendant also failed to warn the plaintiff of the risks attached to the surgery.
(click on the link to read the full case)
CONCLUSION
Different patients have different medical histories, religious and personal beliefs that would make them decide to undergo or forego a medical procedure. Patients must be informed of the risks and everything that would entail the medical procedures before undergoing them unless it is an emergency where there is a risk for loss of life.
It matters not whether the patient is a doctor or an expert in that field of practice.
