When is consent not consent; The essential requirements for valid medical consent in Ghana [ARTICLE]

Informed consent is fundamental to the physician-patient relationship. Touching the body of a patient without his or her consent gives rise to the crime of assault and tort of trespass. Informed consent is more than merely nodding the head or giving a thumbs-up. Whether verbal or written, certain essential elements must come together for the consent to be valid in law.

Informed consent is defined by Section 97 of the Mental Health Act, 2012 (Act 846) as:

“An agreement or consent for a procedure given freely without coercion by a person with capacity when the person has been made fully aware of the nature of the procedure, its implications and available alternative.”

THE ESSENTIAL ELEMENTS

For consent to be valid in law, three essential elements must come together. The absence of any of these three elements renders consent void. Legal validity of consent operates by the all-or- none principle.

Firstly, it must be freely given by the patient devoid of compulsion, intimidation or inducement.

Secondly, at the time of consenting, the patient must have attained the prescribed age and be of sound mind.

Lastly, the patient prior to consenting must be given access to all material facts.

It is trite knowledge that, the absence of any of these three factors vitiates consents and renders same void in law.

CAPACITY TO CONSENT

Capacity to consent is a duty the law places on the patient. The duty is discharged when the patient is able to demonstrate that he/she is of sound mind and has attained the legal age of consent. Under English law, the age of consent to medical treatment is sixteen (16) years. In Ghana, eighteen (18) years is the consent age pursuant to Article 28(5) of the 1992 Constitution, thus “…a child means a person below the age of eighteen years “. This is reiterated by Section 1 of Children Act 1998(Act 560) thus: “for purposes of this Act, a child is a person below the age of eighteen years.” Accordingly, in Ghana, it is only a person 18 years and above and of sound mind (an adult) who has capacity in the eyes of the law to consent to medical treatment. A person aged below 18 years is a child and lacks legal capacity to consent to medical treatment.

WARDSHIP POWERS OF THE COURT

Parents and guardians’ ad litem have the power to consent on behalf of their children. However, in rare instances where disputes arise between a minor’s parent(s) and medical officer(s) as to the best interest of the child regarding treatment, either party may invoke the court’s wardship jurisdiction for the court to determine what will be in the best of the child. Article 28(4) of 1992

Constitution and Section 2(2) of the Children’s Act 1998 (Act 560) establish the wardship jurisdiction of the High Court over the welfare of children in Ghana. A typical example of such situations is where a dispute arises between medical officers and parents of a child belonging to Jehovah Witness faith as to whether or not to administer life-saving blood transfusion to a child suffering from leukemia.

EXCEPTIONS TO THE RULE

GILLICK COMPETENCE

In England, although the age of consent to medical treatment is 16 years, the law makes exception for children below 16 years to consent if such children are believed to have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment. Children falling into this category are deemed as Gillick competent (named after the landmark House of Lords decision in the case of  Gillick v West Norfolk and Wisbech Area Health Authority which established this exception to the rule. It is submitted Gillick competence has no application in Ghana by reason of the combined effect of Article 28(5) of 1992 Constitution and Section 1 of Children Act,1998 (Act 560). Accordingly, only a person who is 18 years and above has capacity to consent to medical treatment in Ghana.

ADULTS INCAPABLE OF CONSENTING

In rare instances where an adult person by reason of sickness or some other cause is unable to give consent to medical treatment, Article 30 of 1992 Constitution provides the way out, thus:

“A person who by reason of sickness or any other cause is unable to give his consent shall not be deprived by any other person of medical treatment, education or any other social or economic benefit by reason only of religious or other beliefs.”

In such rare instances the medical officers are empowered by this Constitutional provision to offer the kind of treatment they deem fit and in the best interest of the patient.  If a dispute should arise with the family of the patient in carrying out their duty, they have the constitutional duty to bring an application before the High Court pursuant to Article 30 for a determination by the court.

CONCLUSION

In the context of medical treatment, consent is no consent unless same is an informed one. Consent is said to be informed when it is freely given by a patient who is of sound mind, of the right age and is fully acquainted with the relevant facts. Anything this short of this, consent becomes vitiated and same is rendered void. In the result, the crime of assault or tort of trespass will accordingly lie.

BY ISAAC OFORI GYEABOUR ESQ,

Associate @Koffie & Partners (Law Conclave), Kumasi-Ghana

President & Founder @ Patient Rights Watch Ghana.

Email: ofori.gyeabour@gmail.com