In this episode of HJ Talks about Abuse, Danielle Vincent and Feleena Grosvenor discuss consent to medical treatment and the possible legal recourse to the same. The team also discuss its relevance to the recent Netflix documentary “Our Father” regarding a fertility specialist in Indiana named Dr. Donald Cline who inseminated dozens of patients with his own sperm, without their knowledge or consent.
Feleena Grosvenor went into the topic of consent to medical treatment at the HJ Abuse Conference which was held on 7 April 2022.
Consent to Medical Treatment
In a medical context, what is often found is that consent hasn’t been sought by the medical practitioner or the treatment given has exceeded what the patient has actually consented to. Both of these situations often give rise to both civil and criminal liability.
In brief consent to medical treatment requires:
Scope
The medical practitioner will need to identify the scope of the treatment to the patient, and/or it will be outlined in a consent form for the patient to sign. The consent given will only relate to specifically those parameters. The scope will need to be clinically indicted. In other words, relevant to the issue before the medical practitioner that they need to treat the patient for.
Voluntary
The consent must be given freely by the patient. It is not valid consent if the practitioner or even a third party has imposed unreasonable pressure on the patient.
Informed
A practitioner is under a duty to take reasonable care to explain the treatment, benefits, and must ensure that a patient is aware of any material risks involved in any recommended treatment. As well as of any alternative or variant treatments.
Capacity
The patient must have the ability to understand the broad nature of the treatment which they are advised to undergo and can use the information given to make an informed decision. They must be able to give consent and also withhold consent.
There are some exceptions aren’t there as to when consent is not required or a refusal of consent may be overridden. For example, in an emergency where medical treatment is necessary and the person is unconscious or mentally impaired and the treatment is in their best interests, usually to save their life.
Our Father
During the 1970s and ‘80s, a fertility specialist in Indiana named Dr. Donald Cline inseminated dozens of patients with his own sperm,without their knowledge or consent. The stories of some of these women and the (those that are known, but the amount could be higher) 94 biological children of Cline are told in a documentary on Netflix called “Our Father”.
The parents and their children face serious frustration and try to bring legal proceedings against Dr Cline for rape. However, the prosecutors decide that they are not able to bring a criminal case of rape because the actions taken by Dr Cline do not fit the legal definition. The parents and children appear to lack appropriate legal recourse in relation to Dr Cline’s actions.
Putting Our Father into Context
In the UK, if a similar act occurred or another act which was not clinically indicted or for which no consent was given then the act would likely amount to Battery and Trespass which is a criminal offence and something that can form a basis of a civil claim for compensation.
A battery is committed when a defendant intentionally or recklessly inflicts unlawful force.
A defendant is the person committing the battery.
The requirement that it is unlawful takes us back to the elements of consent to a medical procedure; consent must be given for the majority of procedures and without it, this element is satisfied.
A trespass is committed when assault or battery is committed, and in this context the defendant must be shown to be indifferent to a known risk. For example, the medical practitioner knew that there was a risk to the patient not consenting, but was indifferent to it because, perhaps, the risk was low.
There is no requirement for a trespass to cause damage, nor is it a barrier to the claim that had the patient been asked, they would have consented.
There also would be an investigation by the relevant medical body, usually the General Medical Council and the Trust, into the actions and the medical practitioner may be found to lack fitness to practise. This can result in them being suspended or unable to practice ever again.
Dr Cline doesn’t appear to be subject to any similar investigation, likely due to the fact that when his horrific acts are discovered he is well into his retirement. If he was still practicing it is likely that different actions would have been taken.
Those listening should keep in mind the rules and importance of consent, especially when subject to an intimate examination such as a gynaecological, abdominal, urinary, pelvic, rectal/prostate examination
