The Choice is Yours: Understanding Your Rights as a Patient

By AMOS MUOKI 

Imagine lying in a hospital bed. A doctor looks at you and says, “Without immediate surgery, you will die.” You respond, “No.” What happens next? If you are a competent adult, the operation does not proceed. Not because the doctor is obstinate, but because your right to bodily autonomy is protected by law, even against life-saving interventions. This principle is grounded in decades of case law and Kenyan constitutional law.

Consent is Absolute: You Have the Final Say

The English case of Heart of England NHS Trust v JB [2014] EWHC 342 clearly articulated that anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the consequences. The court held that any treatment administered without consent is a criminal assault, and the fact that the intervention is well-meaning or therapeutic does not change this. Kenyan law mirrors this principle. Article 28 of the Constitution protects human dignity, and Article 31(a) safeguards every person from unlawful interference with their body. Treating a competent patient without consent can constitute both a criminal offence under sections 250 or 251 of the Penal Code and civil trespass.

Overriding Consent: A High Legal Price

The case of St. George's Healthcare NHS Trust v S [1998] 3 All ER 673 provides a cautionary tale. A woman in labor refused a Caesarean section despite doctors warning that both she and her unborn child could die without it. The Court of Appeal held that performing the surgery was unlawful. The patient’s bodily integrity was paramount; the tragic consequences did not justify violating her consent. This case underscores that patient refusal is absolute, and any violation has serious legal consequences.

Limits of Autonomy: You Cannot Demand Treatment

Autonomy allows refusal but not the imposition of specific treatments. In R (Burke) v General Medical Council [2005] EWCA Civ 1003, Mr. Burke sought to compel doctors to provide artificial nutrition and hydration. The court rejected his claim, emphasizing that autonomy does not entitle a patient to force a doctor to provide a treatment deemed clinically inappropriate. Your right to say “no” is absolute; your right to demand a specific “yes” is not.

Assessing Competency: Who Can Decide?

What happens when a patient cannot make decisions due to mental incapacity? Kenyan law, through the Mental Health Act and Health Act, provides clear guidance. The case of A Local Authority v TZ [2013] EWHC 2322 clarifies how competency is tested. Courts use a two-part test: the diagnostic test and the functional test.

Diagnostic Test: The healthcare professional must establish that the patient has an impairment or disturbance of the mind or brain. This could include mental illness, dementia, significant learning disabilities, brain damage, delirium, or the effects of alcohol or drugs.

Functional Test: The professional must determine whether, as a result of the impairment, the patient is unable to:

1. Understand the information relevant to the decision;

2. Retain that information long enough to make a decision;

3. Use or weigh the information in making the decision; or

4. Communicate their decision effectively.

A patient is considered incapable only if both tests are satisfied, and the inability to consent arises directly from the mental impairment. Once incapacity is established, the law looks first to any appointed supporter, then to a representative (such as a spouse, parent, or adult child) to make decisions in the patient’s best interest.

Children Can Be Legally Competent: Gillick Principles

Maturity matters when it comes to children. In Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, the court ruled that a child who has sufficient understanding and intelligence can consent to medical treatment independently. To be Gillick competent, a child must:

1. Understand the nature and consequences of the treatment;

2. Understand the implications of refusing the treatment;

3. Retain the information long enough to make an informed decision;

4. Possess the capacity to weigh the information and make a reasoned choice.

Kenya applies similar principles, for example under the HIV and AIDS Prevention and Control Act, allowing mature minors at risk of HIV to consent to testing.

Voluntary Consent and Vulnerable Patients

Even a competent patient’s consent may be invalid if it is not truly voluntary. In DL v A Local Authority [2012] EWCA Civ 253, the court held that consent can be overridden if a patient is coerced, unduly influenced, constrained, or incapacitated from making a genuine decision. For instance, refusal based solely on fear or religious coercion may not reflect true autonomy, permitting legal intervention in the patient’s best interest.

Emergency Situations

The law allows treatment without consent when a patient is unconscious and delay would risk death or irreversible harm. Similarly, the Mental Health Act permits involuntary admission for up to 72 hours if there is immediate danger to the patient or others. Beyond that period, proper consent must be obtained.

Withdrawal of Consent

Consent is not static. Patients may withdraw it at any time. Continuing treatment after withdrawal is unlawful unless the clinician reasonably believes the patient lacked capacity at that moment. This reinforces the ongoing importance of respecting patient autonomy throughout care.

Your Rights, Your Responsibility

Ultimately, the law empowers you to make decisions about your body. It allows you to ask questions, seek second opinions, and change your mind. But with this power comes responsibility: discuss your wishes with family, consider appointing a healthcare proxy, and understand the difference between refusing treatment and demanding it.

Your body is yours. The Constitution protects it. Decades of case law affirm it. No doctor, however well-meaning, may override your choices without legal risk. The choice is yours—protect it, respect it, and exercise it wisely.

The writer is legal commentator on constitutional and human rights issues.