Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum

The Journal of Contemporary Health Law and Policy, Volume 17: Pages 61-133, Fall 2000.

The Prerequisites of Effective Consent to Surgery

The common law has always recognized battery - violation of a person's right to be free from unwanted touching - as a civil and criminal wrong. In this century, courts have increasingly emphasized the strong interest each person has in being free from nonconsensual invasion of his bodily integrity.⁶ Subject to certain exceptions - such as emergencies posing threats to life or danger of grievous bodily harm, self defense, jostling in a crowd and contact sports - any willful touching of another person is unlawful absent the valid consent of that person or another person authorized to consent on that person's behalf.⁷ If no valid consent exists, even slight physical contact may give rise to liability.⁸

Medical professionals can also be civilly and criminally liable for wrongful violation of bodily integrity, as well as be subject to professional disciplinary action.⁹ Surgery has long been recognized as a technical battery that regardless of the health-care provider's intentions, can be excused only when there is express or implied consent from the patient.¹⁰ As one landmark Canadian court decision held, "any intentional nonconsensual touching which is harmful or offensive to a person's reasonable exercise of dignity is actionable."¹¹ This is true even if the treatment proves to be beneficial or even necessary to preserve a patient's life.¹² Absent effective consent, liability arises simply from the act of touching.

The consent requirement primarily protects the patient's bodily integrity.¹³ In the case of competent persons, it also protects personal autonomy. Because of the critical interests at stake, consent must be "informed" in order to be valid: the individual must know to what he is consenting.¹⁴ If the physician has not given the patient all the information that a patient needs to make a knowledgeable decision regarding the medical care, any consent the patient gives is ineffectual.¹⁵ The informed consent requirement applies to even minor surgical problems with extremely slight risks such as the removal of a wart.¹⁶

References

6. See, e.g., Union Pac. Ry. v. Botsford, 141 U.S. 250, 251 (1891); Superintendent of Belchertown v. Saikewicz, 370 N.E. 2d 417-424 (Mass. 1977).
7. See Queensland Law Reform Commission, Report No. 51, Consent to Health Care of Young People 1:15 (1996).
8. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, § 9 at 41-42. (5th ed. 1984)
9. See Schoendorff v. Society of N.Y. Hosp., 105 N.E. 92,93 (1914); Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941); Queensland Law Reform Commision, supra note 7, at 24-44; Family Law Council [of Australia]. Sterilisation and Other Medical Procedures on Children – Discussion Paper 17-25 (Barton, ACT; Oct. 1993); J. Wilson, E. Della Torre and R. Ludbrook, My Body, My Decision: Children's Consent to Medical Treatment--Discussion Paper (Sydney: Mar. 1995).
10. See Newmark v. Williams, 588 A.2d 1108, 1115-16 (Del. 1991) (holding that an operation without informed consent constitutes battery): see also Keeton, supra note 8, § 18 at 114; Criminal Code of Canada, supra note 2; Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir. 1972) cert. denied, 409 U.S. 1064 (1972); Schloendorff, 105 N.E. at 93; Bonner, 126 F.2d at 122.
11. Malette v. Shulman [1990] 67 D.L.R. 4th 321, 327 (Can.).
12. See Matter of Storar, 420 N.E.2d 64, 71 (N.Y. 1981) (holding that a competent adult has a common-law right to decline or accept medical treatment, a violation of which right results in civil liability for those who administer medical treatment without consent, despite the fact that treatment may be beneficial or ever necessary to preserve patient's life).
13. See Queensland Law Reform Commission, supra note 7, at 15.
14. See Keogan v. Holy Family Hosp., 622 P.2d 1246, 1252 (Wash. 1980).
15. See id.
16. Edward Etchells et al., Bioethics for clinicians. 1. Consent, CAN MED. ASS'N. J. 177 (1996).

• J. Steven Svoboda, Robert S. Van Howe, James C. Dwyer, Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum. 17 J Contemp Health Law & Policy 61 (2000).

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