Introduction

You were diagnosed of a disease condition which required surgery. Your surgeon failed to disclose to you that the procedure carried 1% risk of partial paralysis. You consented to the surgery and same was carried out successfully. Unfortunately, the 1% risk has materialized after the operation. You are now partially paralyzed.

Is the surgeon liable? 

Would you have declined the surgery if the 1% risk of paralysis was disclosed to you?

Is the surgeon justified under therapeutic exception to withhold the information from you?

Should a doctor’s professional judgment override the right of a patient to know and to decide? 

Is therapeutic exception lawful?

Therapeutic Exception 

Justice Cardozo birthed the doctrine of informed consent over a century ago in the seminal case of Schloendorff v Society of New York Hospital,105 N.E.92 in the United States when he held, thus: 

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages”.

Nevertheless, healthcare is complicated and under exceptional circumstances, doctors may exercise their professional judgment to decline to disclose to patients vital information on diagnosis or treatment ostensibly in the interest of the patients. The exercise of this privilege obviously conflicts with the settled right of patients to give prior informed consent before treatment can proceed failing which the physician commits the tort of trespass or the crime of assault. 

Therapeutic exception is a vestige of the bygone era of medical paternalism in which the doctor was deemed to know it all and patients were treated merely as  passive recipients of healthcare. That “dark” era has been eroded with the deepening of the culture of human rights the world over coupled with easy accessibility to health information with the advent of the internet. Consequently, the doctor is no longer the only source of health information and the average patient is now better informed and more empowered.

Admittedly, it is literally impossible to purge healthcare of paternalism, as same is indispensable particularly during medical emergency when patients cannot exercise their autonomy. 

In the UK, therapeutic exception is considered a limited exception to the general rule that patients must give informed consent before being treated. This was clearly established by UK Supreme Court in their landmark decision in Montgomery v Lanarkshire Health Board [2015] UKSC11 at paragraph 88, thus:

“The doctor is entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health.”

Therapeutic exception therefore is meant merely as an exception and it is not expected to subvert the general rule. It has accordingly been hedged against possible abuse at common law by subjecting the exercise of same to a reasonable doctor test. This means a doctor will only escape liability for exercising the privilege if his conduct accords with certified common practice. 

Further, UK’s Mental Capacity Act, 2005 provides a legal option to persons 18 years and above to make advance decisions regarding their health. Section 24 of the Act is clear:

“Advance decision means a decision made by a person after he has reached 18 and when has capacity to do so, that if at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing healthcare for him and at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued.”

The situation in Ghana is however different. Therapeutic exception in Ghana is regulated by statute i.e. Section 167 of Public Health Act 2012 (Act 851) also known as Ghana’s Patient Charter, thus:

“The patient is entitled to full information on the patient’s condition and management and the possible risks involved except in emergency situations when the patient is unable to make a decision and the need for treatment is urgent.”

Article 33 (5) of Ghana’s 1992 Constitution lends further fortification to the above statutory provision in a democracy like Ghana, thus: 

“The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned...shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

It is submitted that the right of an adult patient who is sui juris to consent to or decline treatment is a fundament human right within the meaning and scope of Article 33 of the 1992 Constitution as same inheres in a democracy like Ghana for the purpose of securing the freedom and dignity of man. In the result, therapeutic exception is permitted by the law in Ghana only in medical emergencies in which patients lack capacity to consent and nothing more. 

Conclusion 

Going back to the scenario recounted at the outset, the surgeon in question would be prima facie negligent per Ghanaian laws for violating the patient’s right to full information on his condition and management pursuant to Section 176 of the Public Health Act 2012 (Act 851). 

However, on the same facts, the surgeon may escape liability in the UK if he is able to prove to the satisfaction of the court the patient was either emotionally or mentally vulnerable and that his failure to disclose was to protect the patient from real risks such as depression, anxiety or suicide and that his conduct accorded with the reasonable doctor’s test.

In sum, a patient’s right to know and decide is settled in law and should triumph over a doctor’s professional judgment. Nonetheless, the law recognizes that in limited situations full disclosure may harm the patient or jeopardize desired clinical outcomes or may even be moot in the case of medical emergency. Such situations present a legal dilemma in which the doctor rather than the court has the power to veto a solution.