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Law and Medicine 1

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LAW AND MEDICINE 1 The general principle is valid consent must be obtained before medical treatment can commence. In Allen v New Mount Sinai Hospital [1980], J linden stated 'consent is not a mere formality; it is an important individual right to have control over one's body, even where medical treatment is involved.'1 In Schloendorff v society of New York Hospital [1914]2, Cardozo J made a statement "Every human being of adult years and sound mind has a right to determine what shall be done and a surgeon, who performs an operation without his patient's consent, commits an assault." There must be some lawful justification for a medical procedure, which would otherwise constitute the tort of battery. Battery is a form of trespass, and as such, it is actionable par se. A battery consists of the infliction of unlawful force on another person. It is sometimes stated that where the patient is incapable of consenting, an effective consent may be given by his/her spouse, or by some near relative. Nevertheless, this can be argued, as there is no general doctrine whereby a spouse or relative is empowered to give a legally effective consent to medical procedures to be carried out on an adult. There are circumstances where doctors are justified in proceeding without the consent of the patient. Tom was unconsciousness on arrival and was in critical condition where his injuries were life threatening. Tom is considered temporally incompetent because he was unconscious on arrival at the hospital. Therefore, he could not consent to treatment at the time of the accident. No one can consent on Tom's behalf because he is an adult; the authority for this is Re F (Mental Patient: Sterilisation) [1990]3. In this case, the House of Lords said no authorisation on one's behalf can be accepted regarding consent for an incompetent adult. Because Tom is unconscious and unable to give consent, then it is lawful at common law to give the patient treatment without their consent. ...read more.


Confidentiality has recently been addressed in AG v Guardian Newspaper Ltd (No2) [1988]13. The Court held that a duty of confidence arises when confidential information comes to knowledge of a person (the confident) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all circumstances that he should be precluded from disclosing the information to others. It is now established that Mr Botchit has an obligation to keep any information regarding Tom confidential, it must be seen if he has breached his obligation. Megarry, VC in Malone v Commissioner of Police of the Metropolis [1979]14 said three elements are required for a breach of the obligation to be established. The information must have a quality of confidence, it must be imparted in circumstances in importing an obligation of confidence and, there must be an unauthorised use of the information that is to detriment of the person who is communicated it. In Stephens v Avery [1988]15, the Court said the information must not be 'mere trivia'. The duty of confidence is not absolute, and is only by looking at the circumstances in which a breach of confidence can be justified in law that he scope of the duty can be appreciated. The BMA's Handbook of Medical Ethics gives five exceptions, and the General Medical Council identifies eight exceptions where information about an information be disclosed. Mr Botchit divulged information about Tom's condition to his wife. It is said that information should not be discussed or disclosed to a spouse as the adult patient is entitled to confidentiality as a right just as anyone else does. However, the GMC Blue Book states that: "In exceptional circumstances a doctor may consider it undesirable, for medical reasons, to seek a patient's consent to the disclosure of confidential information. In such cases information may be disclosed to a relative or some other person but only when the doctor is satisfied that it is necessary in the patient's best medical interests to do so." ...read more.


The technique used was not widely practiced but was supported by two eminent surgeons. Ahmed did find that there were many surgeons who condemn of the technique. As well as showing that a duty was owed and that it was breached, Ahmed needs to show this breach by Mr Botchit caused her injury. He has to prove both legal and factual causation. Factual causation is concerned with the fact that Mr Brochit's negligence was the physical cause of Ahmed's paralysis. Ahmed has to prove on a balance of probabilities that, more likely than not, Mr Botchit's breach caused the injury. Factual causation can be established using the 'but for' test. Here, the claimant, (Ahmed) proclaims her injury (paralysis) would not have occurred but for the defendant's (Mr Botchit) negligence. Mr Botchit owed Ahmed a duty of care; he breached this duty according to the standard of care set out in the Bolam test. Mr Botchit used pioneering surgery on Ahmed, which was only approved by two surgeons; they can constitute a responsible group of medical opinion, as was held in Defreitas v O'Brien [1995].27 1 [1980] 28 Ont (2d) 356 2 [1914] 211 N.Y. 125 3 [1990] 2 All ER 440 4 [1957] 1 WLR 582 5 [1905] 104 NW 12 6 [1989] 2 A.C. 1 7 [1997] 2 FLR 426 8 [1949] 2 DLR 442 9 [1981] C.A. unreported 10 [1933] DLR 260 11 M Jones, Medical Negligence, 1997, pg 164 12 Stauch M, Sourcebook on Medical Law, 2nd Ed, Cavendish Publishing, 2002 13 [1988] 2 All ER 14 [1979] 2 All ER 620 15 [1988] 1 Ch 449 16 M Jones, Medical Negligence, 1997, Sweet and Maxwell 17 [2002] 1 All ER 786 18 [1990] 1 All ER 786 19 [1988] 2 Al E.R. 648 20 [1985] QB 526 21 [1990] 1 All ER 568 22 [1969] 1 QB 428 23 [1997] 2 All ER 865 24 [1957] 1 WLR 582 25 [1995] 6 Med LR 128 26 Khan, M, Robson M. What is a Responsible Group of Medical Opinion? (1995) 11 Professional Negligence 4 27 [1995] 6 Med LR 128 ...read more.

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