Patients have a fundamental ethical and legal right to determine as to what happens to their bodies. Valid informed consent is therefore absolutely central to all forms of medical treatments and surgical procedures. Only in limited circumstances, a doctor may proceed without consent. Non-consensual treatment is legal only when the patient is not in a position to have or express any views as to his or her affairs. However, involuntary treatment against the patient’s wishes is very rare, and can only be done when the interests of a third party or the society are involved. Necessity, of course, is a viable defense to any proceedings for nonconsensual treatment where an unconscious patient is involved and there is no known objection to treatment. But a doctor cannot therefore take advantage of unconsciousness to perform procedures which are not essential for the patient’s immediate survival or wellbeing. This paper critically examines the position of patient’s autonomy in the field of medical treatment.

The Common Law has long recognized the principle that every person has the right to have his bodily integrity protected against invasion by others. Only in certain narrowly defined circumstances may this integrity be compromised without the individual’s consent. The seriousness with which the law views any invasion of physical integrity is based on the strong moral conviction that everyone has the right of self-determination with regard to his body unless there is consent to an act of touching by another. Such an act will be subject to the principle of de minims non curat lex and constitute a battery for which damages may be awarded. Consent can make physical invasion lawful, but the reality of such consent may be closely scrutinized by the law and it is anyway subject to certain policy limitations. Every touching of a patient by way of medical treatment is potentially a battery unless consented to.

The classic expression is that of Justice Benjamin Cardozo in Schloendorff vs. Society of New York Hospitals1 wherein it was said: “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 the patient’s consent commits an assault for which he is liable in damages.” Notwithstanding the articulated right to determine what happens to one’s body, Cardozo’s opinion did not specify that the right was grounded in a fundamental right to autonomy. In Re T,2 Lord Donaldson sets out the position as follows: An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment or refuse it, or to choose one rather than another of the treatments being offered. This right of choice is not limited to decision which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.

Law Review Journal, Protection, Non-Consensual Medical Treatment, Legal Justification, Society of New York Hospitals, Medical Treatment, Surgical Procedures.