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Ethics briefings
  1. Veronica English,
  2. Rebecca Mussell,
  3. Julian Sheather,
  4. Ann Sommerville
  1. BMA Ethics Department;

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    Incapacitated patients and treatment refusal

    Confusion still appears to exist about what constitutes informed consent or refusal in some circumstances. In September 2004, the Royal Devon and Exeter hospital paid £8 500 compensation in an out of court settlement to a renal patient who had been given a blood transfusion 3 years previously.1 All agreed that dialysis and a blood transfusion would have normally been the correct course of action for the condition, but in this case the patient was known to be a Jehovah’s Witness. Nevertheless, in 2001, a transfusion was carried out without consent. There were no English legal precedents since in previous instances, applications to court for permission to provide transfusions concerned only prospective situations. The circumstances echoed, however, the 1988 Canadian case of MalettevShulman2 where an unconscious patient carrying a Jehovah’s Witness card was given blood and later awarded compensation. In the Canadian case, however, it had been argued that doctors had insufficient evidence that the patient had been fully informed at the time of signing the card, nor was it clear whether she intended to refuse blood in the circumstances which arose. In the Devon case, the patient had been attending the hospital for 20 years, had previously refused a blood transfusion in life-threatening situations and this was clearly marked on his medical records.

    Informed consent

    The degree of information needed for informed consent was also the subject of further legal debate. In October 2004, the House of Lords ruling in the appeal case of ChestervAfshar3 focussed on a neurosurgeon’s omission to forewarn a patient of a 1–2% risk that a back operation could cause cauda equine syndrome and paralysis. Previously in the same case in 2002, a court had ruled against the surgeon who carried out the operation resulting in this rare condition. There had …

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