Informed medical consent: A legal dilemma or reality in Kenya?

The ability of ordinary adults to exercise a free choice in deciding whether to accept or refuse medical treatment and to choose between treatments is not to be dismissed as desirable but essential. It is a crucial of factor in relation to all medical treatment.

— Lord Donaldson

By virtue of Article 25 of the Universal Declaration of Human Rights, health is a universal right. Every person has a right to the highest attainable standard of physical and mental health, which includes, among other things, access to all medical services. However, this right has more to it than just people receiving medical treatment. With time, it has evolved to protect the freedom of individuals and has given them the autonomy to choose whether or not certain treatments should be given to them.

Legally, consent can be defined as an agreement, approval or permission to some act or purpose, especially given voluntarily by a competent person. Consent can be an affirmative defence to assault, battery and related torts, but the victim must have the capacity to consent. Capacity, on the other hand, is defined as the satisfaction of legal qualification, such as legal age or soundness of mind. 

In regards to medicine and the law, consent must be informed, meaning, a medical practitioner must communicate sufficient information to the patient to help them understand the purpose, benefits and potential risks of a medical or surgical intervention, including clinical trials. The patient would in turn agree or refuse to receive the treatment or participate in a clinical trial having made a choice, voluntarily, based on the information provided.

This principle of informed consent is recognised in both international and national law. For instance, Article 20 the African Charter on Human and People’s Rights provides that everyone has the unquestionable and inalienable right to self-determination. This right is echoed by the International Covenant on Civil and Political Rights under Article 1. This provides that all people have the right to self-determination, which forms the basis of the medical principle of autonomy. Article 7 further provides for the right against subjection to torture, cruelty, inhuman or degrading treatment or punishment. In particular, no one shall be subjected, without their free consent, to medical or scientific experimentation.

The Constitution of Kenya 2010 enshrines the right to the highest attainable standard of health under Article 43.  There are other rights associated with the right to health, including right to life under Article 26. This article sanctifies life of every Kenyan and in the event that a doctor administers a wrong treatment, having not received informed consent from the patient, and the patient loses their life in the process, the doctor could be held liable under this Article. The right to human dignity is also protected under Article 28 of the Constitution. This makes it necessary for doctors to explain the procedures and treatment they are administering on patients as a way of treating them with the dignity they deserve. By virtue of Article 32, patients can make a medical decision based on their conscience, religion, thoughts and beliefs. Under Article 33 (1), freedom of expression is provided for and in relation to informed consent, a patient therefore has the freedom to express themselves.

The Kenya National Patients’ Rights Charter also provides for the right to refuse treatment under section 6, as well the right to informed consent under section 8.

But are these rights upheld in Kenya? And are Kenyans even aware of their right to give informed consent? Do medical practitioners use simple language that patients can understand when giving them information on medical treatments and procedures?

The information that ought to be provided to the patients by the medical practitioners is uncertain, and this uncertainty has on numerous occasions been subject to litigation in legal courts. The legal dilemmas in such cases are grounded on the question of how much information patients should receive from medical practitioners.

There are two approaches that can be used when it comes to providing information to patients. One is the ‘prudent patient standard’, in which the medical practitioner is required to disclose all information, including all risks that a reasonably prudent patient would consider important to reach a decision. While the second approach is the ‘prudent surgeon standard’, which allows the doctor to disclose information that another prudent medical practitioner would consider important to help the patient reach a decision.

Most doctors choose the ‘prudent surgeon standard’, which does not meet the expectations of informed patients. They end up leaving patients out of the decision-making process, which should not be the case.

A patient has the right to sue for damages for the battery committed by a medical practitioner who proceeds with a non-consensual treatment involving touching of any sort. The patient does not even need to prove loss as a result of the touching; their case may suffice so long as they are able to establish that a medical practitioner touched them wrongly while administering a non-consensual medical treatment. In other cases, a medical practitioner may be given consent to proceed with one procedure but proceeds to carry out a different one. This might happen when the patient is under anaesthesia. Even though they might be doing it in the medical interest of the patient, the act could amount to negligence.