"Consent from patient is necessary before we perform any examination or procedure. A person's right to self-determination: respect for autonomy. This right is protected in law." ^[1]

Without consent, touching a patient is legally assault/battery. Without adequate information, treating a patient is negligence. Consent exists at the intersection of:

• Respect for autonomy (patient's right to decide)
• Beneficence/non-maleficence (doctor's duty to help/not harm)
• Protection from harm (both legal and physical)

For consent to be valid, the patient must: ^[1]

1. Be given relevant information relating to the nature and purpose of the treatment and its risks and benefits
2. Have the capacity to make the decision
3. Give consent voluntarily: able to exercise choice, free from manipulation or undue influence

Consent may be express (e.g. saying 'yes' clearly) or implied (e.g. holding an arm out and rolling up his sleeve when asked to have a blood test). ^[1]

The law does not require consent to be in written form. Having a signed consent form does not automatically mean a patient has given consent. It is only evidence, and may be questioned in court. ^[1]

The treating doctor. Ensure the three components of a valid consent are in place. ^[1]

This is a critical point: you cannot delegate consent-taking to a nurse or junior who cannot answer the patient's questions about the procedure. The treating doctor must:

• Give appropriate information in simple terms ^[1]
• Ensure patient has capacity and is voluntary ^[1]
• Note limits of consent given ^[1]

If there is material change in situation ^[1] Do not do more than consented to, even if additional treatment is of benefit to patient, except in life-saving situations. ^[1]

Example from Ryan Ho notes: A patient consents to hysterectomy for fibroids. Intraoperatively, the surgeon discovers the patient is pregnant. The surgeon should NOT remove the uterus — this is a material change. Similarly, don't remove a gallbladder just because you found gallstones incidentally during another procedure. ^[2]

Exception: In a life-saving emergency, you may go beyond the original consent.

Information in 'broad terms': the nature of problem, the treatment recommended and its pros and cons, the alternatives and their pros and cons. Give information using simple, clear, jargon-free language. You must respond honestly to any questions the patient raises and answer as fully as the patient wishes. ^[1]

The standard in HK follows the "reasonable patient" test — what would a reasonable person in the patient's position want to know? This includes:

• Common and serious risks
• Material risks (those that would affect the patient's decision)
• Alternative options including doing nothing

N.B. Presumption of Capacity ^[1]

This is the starting point for EVERY patient encounter. Every adult is presumed to have capacity unless proven otherwise through a formal assessment. You cannot just assume someone lacks capacity because they:

• Have a psychiatric diagnosis
• Are elderly
• Make a decision you disagree with

Capacity is: ^[1]

• Related to a person's abilities to make that decision (functional approach)
• Decision-specific and time-specific
• NOT determined by the outcome of the decision
• NOT determined by a person's diagnosis or status

A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (Cases of Re T, Re MB) ^[1]

Capacity is commensurate with the gravity of the decision ^[1]

This means: the more serious the decision, the higher the threshold for demonstrating capacity. Consenting to a blood test requires less capacity than refusing life-saving surgery.

Capacity may be diminished by illness, false assumptions, misinformation or overbearing influence by another person ^[1]

This is important — capacity isn't just about cognitive function. External factors (e.g., a controlling relative, incorrect information given by another healthcare worker) can impair it.

Common law (from case of Re C): Relevant abilities for refusal of treatment: ^[1]

1. Understanding and retaining the information
2. Believing the information
3. Weighing the information in balance to arrive at a choice

This three-part test from Re C (1994) — a case involving a paranoid schizophrenic patient with gangrene who refused amputation — became the foundation of capacity law. The court found he HAD capacity because he could understand, believe, and weigh the information, even though his decision seemed unwise.

Statutory definition in the Mental Health Ordinance section 59ZB(2): Incapacity for consent to treatment = inability to understand the general nature and effect of the treatment or special treatment. ^[1]

Note: The MHO definition is narrower than the common law test — it focuses only on understanding. In practice, clinicians use the fuller common law framework (understand + believe + weigh) when assessing capacity.

When a patient lacks capacity, the ethical framework shifts from autonomy to beneficence/non-maleficence:

The treatment will: save the life of the patient; prevent damage or deterioration; bring about an improvement to his/her physical/mental health and wellbeing. ^[1]

If possible, include: consideration of previously expressed wishes and adopting the least restrictive alternative. ^[1]

Can treat in the patient's 'best interests' under the principle of necessity. ^[1]

Best interests is NOT simply what the doctor thinks is medically optimal. It should incorporate:

• The patient's previously expressed wishes (when they had capacity)
• The least restrictive alternative that achieves the treatment goal
• The patient's values and beliefs (if known)

If urgent: can treat straight away. In an emergency, where consent cannot be obtained, you may provide medical treatment to anyone who needs it, provided the treatment is limited to what is immediately necessary to save life or avoid significant deterioration in the patient's health. Don't Wait! ^[1]

No one can give or withhold consent to treatment on behalf of a mentally incapacitated adult (unless there is a legally appointed guardian). Asking a next of kin to sign a consent form has no legal authority. Treatment can be provided under Part IVC of the MHO (best interests principle). ^[1]

Mentally Incapacitated Person: Adults with a mental disorder or mental handicap (e.g. dementia, brain injured, mental illness, mental retardation) ^[1]

Not all Mentally Incapacitated Persons lack mental capacity! ^[1]

• MIP: defined by diagnosis/condition
• Incapacity: defined by inability to understand

This distinction is crucial. Being an MIP is a diagnostic label. Having incapacity is a functional assessment. A patient with mild dementia (MIP by diagnosis) may still have full capacity for many decisions.

A doctor/dentist may give urgent or non-urgent medical or dental treatment to a MIP who lack capacity to consent, when the treatment is necessary and in his/her best interests. ^[1]

This is under Part IVC of the MHO — it provides the legal framework for treating MIPs who lack capacity even without guardianship.

There is no need to apply for guardianship in most cases. Guardianship applications take months to process! ^[1]

When guardianship IS useful: ^[1]

• Disagreement between family members and healthcare team or within family
• MIP strongly resists treatment that is in his/her best interests
• Doctors unwilling to provide treatment without a guardian's proxy consent

Powers include: ^[1]

• Require the person to reside at a specific place
• Bring the person to a specific place (using reasonable force)
• Require attendance for medical/dental treatment, special treatment, education
• Consent to medical/dental treatment if the person is incapable of understanding the general nature and effect
• Require access to the person by specified professionals
• Hold/receive/pay a specified monthly sum (max HK$20,000/month)

When a guardian wrongfully refuses to give consent; when the treatment is controversial e.g. withdrawal of life-sustaining treatment, overwhelming resistance from family; existence of a dubious advance directive; 'Special treatments': organ donation, sterilisation. ^[1]

The MHO addresses: care and supervision of MIPs; management of property and affairs of MIPs; reception, detention and treatment of mentally incapacitated persons who are mentally disordered; guardianship; consent for treatment for MIPs who have attained 18 years of age. ^[1]

Mental Incapacity includes: (a) mental disorder; or (b) mental handicap. ^[1]

Excludes: (a) promiscuity or other immoral conduct; (b) sexual deviancy; (c) dependence on alcohol or drugs. ^[1]

'Mental disorder' includes: (a) mental illness; (b) a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct; (c) psychopathic disorder; (d) any other disorder or disability of mind which does not amount to mental handicap. ^[1]

'Psychopathic disorder': a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct. ^[1]

'Mental Handicap': sub-average general intellectual functioning with deficiencies in adaptive behaviour. Sub-average = IQ of 70 or below (Wechsler Scale or equivalent). ^[1]

'Patient': a person suffering or appearing to be suffering from mental disorder. ^[1]

'Mental hospital': any place declared to be a mental hospital — Castle Peak Hospital, Kwai Chung Hospital, PYNEH, Tai Po Hospital. ^[1]

The reasons for detention are: (1) To protect the person detained from further harm, e.g. detention of actively suicidal patients, patients in serious state of self-neglect; (2) To protect society from the person detained, e.g. convicted killers, rapists; (3) Both of the above. ^[1]

These powers are there REGARDLESS of mental capacity. ^[1]

This is a key distinction: detention under the MHO is NOT the same as lacking capacity. Even a patient WITH capacity can be detained if they pose a serious risk to themselves or others AND have a mental disorder.

Voluntary patients; Patient under observation; Certified patient ^[1]

Grounds for admission: suffering from mental disorder of a nature or degree which warrants his detention in a mental hospital for observation (or for observation followed by medical treatment) for at least a limited period; AND ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. ^[1]

Required Forms: ^[1]

• Form 1: Application by a relative (or doctor)
• Form 2: Medical recommendation by a doctor
• Form 3: Order by a district judge or magistrate

Patient has a right to request to see the District Judge or Magistrate. ^[1]

This period of observation may be extended if applied for by a doctor with special experience in the diagnosis or treatment of mental disorders (approved doctor). ^[1]

Grounds for detention: suffering from mental illness, amounting to mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; AND it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained. ^[1]

Need at least one recommendation from approved doctor. ^[1]

Note the key differences between observation and certification:

A statutory body to protect the rights of patients. Appeal may be lodged by the patient or his relative. Automatic appeal lodged by Hospital head if no appeal after a period of detention for 12 months. Power to discharge patient either absolutely or subject to conditions. ^[1]

This is the safeguard against indefinite unjust detention. The Tribunal is independent and has the power to release patients.

Patients might not seek help if the information they give doctors are not kept secret. Autonomy and respect for privacy: there is an implied 'promise' that a doctor will keep patient information confidential. BUT often there is a conflict between confidentiality and the interests of others, e.g. dangerous patient. ^[1]

A patient, Prosenjit Poddar, confided to Dr Moore, a psychologist that he intended to kill his former girlfriend, Tatiana Tarasoff. Dr Moore believed him and notified his superior and the police. No action was taken to warn the woman, whom Poddar eventually killed. ^[1]

The California Supreme Court ruled: 'When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.' ^[1]

Key principle: The duty to warn/protect an identifiable potential victim overrides confidentiality when there is a serious danger of violence.

W is a patient detained in a secure hospital having killed five people. He applied for discharge. Dr Egdell, appointed by W's solicitors, believed W was still dangerous and wrote a report opposing the application. W's solicitors withheld the report. Dr Egdell forwarded a copy to the hospital and ultimately the Home Secretary. W sued for breach of confidentiality. ^[1]

The court ruled: '…the private interest of W set against the public interest served by the disclosure…I find the weight of the public interest prevails.' ^[1]

Key principle: Public safety can outweigh an individual's right to confidentiality, but the threshold is high — it must involve serious risk to the public.

Should get consent. Exceptional circumstances without consent: (1) necessary to prevent serious harm to patient or others; (2) required by law. Should weigh carefully the pros and cons of disclosure without consent. Should consult senior colleagues, medical defence organization, professional organization or ethics committee. (MCHK Code 1.4) ^[1]

Immediate danger to self or others; child abuse cases (after referral to and consultation with MSW); serious crime e.g. murder, manslaughter, rape, gunshot wound victims, multiple chop wounds; sexual abuse or battered spouse (referral to MSW or report to Police WITH victim's consent); under 13 pregnancy. ^[1]

It is the responsibility of the Police to justify the request and provide sufficient background information. ^[1]

N.B. 'In the public interest' ≠ 'what the public is interested in' ^[1]

1. Presume capacity — don't assume refusal means incapacity
2. Assess capacity using the Re C framework:
   • Can they understand the information? (ask them to paraphrase)
   • Do they believe it applies to them? (assess insight)
   • Can they weigh the information? (explore reasoning process)
3. If capable: Respect their decision, even if unwise. Document clearly.
4. If incapable:
   • Is it urgent/emergency? → Treat under necessity
   • Is it non-urgent? → Treat under best interests (Part IVC MHO)
   • Consider previously expressed wishes, least restrictive alternative
5. If mental illness is present and poses risk: Consider MHO detention
6. Always document your capacity assessment and reasoning

1. With consent → No problem, disclose appropriately
2. Without consent:
   • Is it factual data only? → Check PDPO s58 exemptions; verify rank of requesting officer
   • Is it clinical data? → Only with search warrant OR if public interest (serious crime, genuine risk)
3. When in doubt: Consult senior colleagues, MDO, or ethics committee
4. Document the request and your decision

1. Vignette-based MCQ: Patient refuses treatment → assess capacity → what to do next?
2. SAQ: "List the components of valid consent" or "Describe how you would assess capacity"
3. Minicase: Ethical scenario involving confidentiality vs public safety
4. Four principles application: Given a scenario, identify which principles are at stake

Question stem: "During your clinical foundation block, a doctor takes a group of 6 students to practise clinical skills on an 80-year-old lady with an acute confusional state secondary to a urinary tract infection. She is disorientated and agitated at times. The doctor tells you to examine her abdomen. As the first student exposes the lady's abdomen, she moans and pushes the student's hand away. The doctor encourages the student to continue. The student looks uncomfortable, but persists.

(a) With reference to ALL four principles, explain the ethical issues that this scenario raises. (8 marks) (b) List two reasons why the student continues the examination even though he feels uncomfortable. (2 marks)"

Model Answer:

(a) Four principles (2 marks each):

• Autonomy: The patient is confused (likely lacks capacity due to delirium) and cannot give valid consent. She pushes the student's hand away, which is a form of refusing — this should be respected. Even in a patient with questionable capacity, physical resistance should not be overridden for teaching purposes.
• Beneficence: The examination may benefit the patient if it contributes to her clinical management, but a student examination purely for learning purposes does not directly benefit her. The benefit is primarily to students, not the patient.
• Non-maleficence: Continuing despite the patient's distress causes harm — both physical discomfort and psychological distress. The principle of "first do no harm" is violated.
• Justice: The patient is being used as a teaching resource without proper consent. Vulnerable patients (elderly, confused) should not be disproportionately burdened by teaching activities. The fair distribution of the "burden" of clinical teaching is compromised.

(b) Two reasons the student continues:

• Authority gradient / obedience to senior doctor (power dynamics)
• Fear of appearing incompetent or being singled out / peer pressure
• (Other valid answers: belief that the doctor knows best, wanting to pass the clinical assessment)

Question stem: "Q8. Which ethical principle is violated and why? Q9. List three points of how you would respond to the daughter's request? Q10. With reference to principlism, list three possible factors that may contribute to non-disclosure of diagnosis."

Rationale: This question likely involves a scenario where a family member requests non-disclosure of a diagnosis (e.g., cancer) to the patient. Key principles tested: autonomy (the patient's right to know their diagnosis), beneficence vs non-maleficence (is withholding information protective or harmful?), and confidentiality.

The confidentiality section of this lecture directly feeds into GC 174, which goes deeper into the Tarasoff duty, W v Egdell, and the MCHK framework. Know both lectures as a pair.

Ryan Ho's notes provide a concise summary that aligns with the lecture slides. Key additions include practical examples of consent limits (hysterectomy/gallbladder scenarios) that are useful for exam answers.

Informed consent in research follows similar principles but with additional safeguards: IRB approval, written informed consent forms (mandatory in research, unlike clinical practice), right to withdraw without consequences.