Law and Medicine 1

In Re MB (An Adult: Medical Treatment) (Caesarean Section) [1997], a pregnant woman gave consent for a caesarean section, at the last minute she panicked and refused to go ahead with the caesarean section because of a phobia she had with needles. The Court held that she was temporally incompetent, and that the needle phobia had robbed her of any decision-making ability. The operation would have carried out without the patient’s consent under the doctrine of necessity.

Mr Botchit carried out an emergency operation on Tom’s arrival at the hospital. Tom was in a state of critical condition and was unconsciousness; therefore, it was necessary for the operation because of the critical condition as was in the case of Re MB. As Tom was an adult, no one could consent on his behalf as was stated in Re F. Mr Botchit carried out the operation in Tom’s ‘best interest’, which is resolute in the guidelines of the Bolam test. The surgery was carried out in an emergency under the doctrine of necessity.

However, Mr Brochit carried out another operation on Tom’s lungs. The condition was not life threatening but Mr Botchit thought this would save Tom the trauma of having to undergo additional tests and further surgery. In Murray v McMurchy [1949], the doctor whilst performing a caesarean section, sterilised the patient. The Court held that the sterilisation was not necessary and it would not have been unreasonable to postpone the operation. The doctor was held liable in battery.

Similarly, in Devi v West Midlands Regional Health Authority [1981] a surgeon performed a sterilisation operation on the plaintiff despite no prior discussion with the plaintiff about the procedure. The surgeon had simply taken the view it would be in the patient’s best interest. The defendant admitted liable for battery. Therefore, this shows that Mr Botchit was not authorised for the operation on Tom’s lungs, as it was not necessarily merely convenient, as the operation could have been carried out later.

On the other hand, in Marshall v Curry [1933], the surgeon discovered a diseased testicle, which he removed in the course of a hernia operation being performed under general anaesthetic. It was held that the surgeon was justified in removing the testicle without the patient’s consent, because the organ would have constituted a threat to the patient’s life. The surgeon acted in the best interests of his patient and there was no action for trespass.

If Tom establishes that the operation on his lungs should have not been carried out, he may sue for damages for the battery, which has been committed by the non-consensual treatment.

After carrying out the operation on Tom, Mr Botchit informed Tom’s wife, Dot, of Tom’s post-operative state and his long-term prognosis in relation to the lung condition.  

A doctor owes a duty of confidence in respect of information concerning his patient, which he acquires in his capacity as a doctor. The obligation is widely regarded as one of the basis of a doctor/patient relationship, and this is reflected in a number of international ethical codes. The most important statement of the medical profession’s ethical duty is contained in the guidance provided in the General Medical Council’s “Blue Book,” which states that:

        “Patients are entitled to expect that information about themselves or others which a doctor learns during the course of a medical consultation, investigation or treatment will remain confidential. Doctors therefore have a duty not to disclose to any third party information about an individual that they have learned in their professional capacity, directly from a patient or indirectly.”

Doctors must take the Hippocratic Oath when they become doctors, which states any information received in the course of their duties must not be disclosed. There is no right to privacy in English law, although in practice much that is private can be protected in other ways, for example, the tort of trespass, nuisance and so on. Furthermore, the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998 (in force from 1 October 2000) Article 8, protects the right to a ‘private life’. Article 8 states:

        

1 Everyone has the right to respect for his private life and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national, security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of rights and freedom of others.

Other ways which health care professional can maintain patient confidentiality are binding by a legal duty or by a contract of employment with a health care provider. The patient may allow disclosure of confidential information by giving their consent in release. In order to give consent, the patient must have the necessary mental capacity and be aware of the circumstances and purpose of the release. It is dangerous to assume in all situations that a patient would want information to be passed to a relative without their permission. If a patient is not able to agree then a disclosure should only be made when it is in their best interests.

Confidentiality has recently been addressed in AG v Guardian Newspaper Ltd (No2) [1988]. 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] 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], 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.”

Apart from the case of children under the age of 16 years, the legal basis for this exception is doubtful. Whilst there may be rare circumstances, in which there could be a duty of care not to reveal facts about the patient’s condition to the patient, it does not follow that in the law the doctor is entitled to disclose the information to someone else, whether a relative or otherwise. Other circumstances where confidential information may, or even must, be released without the consent of the patient. These situations come under two categories, when it is required by the law and in circumstances that are justifiable as being in the public interest.

In R v Department of Health ex p Source Informatics Ltd [2000], the Department of Health issued guidelines that anonymous data concerning patients was a breach of confidence. The judge at first instance agreed, the Court of Appeal, however, did not. Therefore, any anonymous data concerning patients does not constitute a breach of confidence.  

It has been established Tom was an incompetent adult because he was unconscious upon the hospital. There are no specific statutory provisions in regards to incompetent adults. The rules of ‘best interests’ are to be used to protect patients and their confidentiality. If confidentiality is breached it must be in the patient’s ‘best medical interests’ to disclose information.

The rule of confidentiality is not absolute. Professional codes are not legally binding but are held in high esteem by the courts. The GMC Code of Professional Conduct recognises a breach of obligation of confidence.

There are circumstances in which the public interest of keeping medical information confidential is outweighed by another public interest. The ‘public interest’ is a technical term and is a justification used to lawful certain acts, which benefit the public although they may breach an individual’s rights. There is no precise definition of which disclosures are in the public interest and it depends on the circumstances.

The scope of the public interest defence in the specific context of the doctor/patient relationship was considered in W v Egdell [1990]. The court held that a physiatrist was justified in disclosing his report on a patient because there was a risk of danger to the public. However, the court also emphasised that there was a public interest in maintaining confidentiality, but that in the circumstances of unusual difficulty there had to be a balancing of interests.

There is a public interest in the freedom of the press and other forms of media to investigate and report on matters of legitimate public concern. In matters of medical confidentiality, the public interest in freedom of the press must be balanced against the public interest in maintaining patient confidentiality.

A breach of confidentiality in the case X v Y [1988] where the names of two doctors being treated for AIDS were improperly disclosed and the health authority sought and obtained an injunction to prevent their publication by a newspaper.    

Mr Botchit disclosed information about Tom’s condition to a reporter this information was anonymous. Anonymous information does not constitute a breach of confidence. Mr Botchit was justified in disclosing information to the press as there was a risk of danger to the public and the information given was in the public interests because it concerned the future of the public as in Lion Laboratories v Evans and Express Newspapers [1985]. Here the court of Appeal authorised internal documents to be publicised concerning intoxemeters used for drink- driving offence.

Medical negligence is the acting carelessly or negligently by the defendant, which causes harm to the claimant. Negligence has been defined by Winfield and Jolowicz as; ‘negligence as tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff’.

In order to succeed in an action for medical negligence, the patient/claimant will have to prove all the necessary elements of a negligence claim. These are duty of care, breach of duty and the breach of duty caused legally recognised damage.

For a duty of care to be imposed on a defendant, the usual principle relating to the common law duty of care apply in the case of Caparo Industries plc v Dickman [1990]. There must be a reasonably forseeability of harm to the plaintiff, there must be a relationship of sufficient proximity between the plaintiff and the defendant and finally, as a matter of public policy, it must be just and reasonable to impose a duty of care.

Therefore, it can be said that Mr Botchit owed both Ahmed a common law duty. There was sufficient proximity between Mr Botchit and Ahmed, as it was established in Barnett v Chelsea and Kensington Hospital Management Committee [1969], that casualty departments should at least assess their patients if they do not treat them.

In Capital and Counties v Hants CC [1997], Stuart-Smith J considered the duty of care owed by practitioners to their patient’s as obiter: ‘There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patients exists, the doctor or the hospital owe a duty to take responsible care to effect a cure, not merely to prevent further harm.’

Now it has been established Mr Botchit owed Ahmed a duty of care, it must be shown that Mr Botchit breached his duty. The standard of care by which Mr Botchit it to be judged is not of an ordinary man, but that of a reasonable man with special medical skills as was said by Mcnair J in Bolam v Friern Hospital Management Committee now which is referred to the ‘Bolam test’, where Mr Botchit standards will be judged. The test does not find a doctor negligent if what he did was accepted practice by a responsible body of medical opinion that are skilled in that art. In Defreitas V O Brien [1995], the Court of Appeal addressed this issue. The case concerned spinal surgery, out of eleven expert witness surgeons only two approved and supported the defendant’s procedure. Therefore, it was held that two people could constitute a responsible body of medical opinion for the purposes of the Bolam test. What is a responsible body of medical opinion was discussed by M Khan and M Robson who commented: ‘What is an important in that the group should represent an identifiable specialism which, I the Defreitas case, this small number of spinal surgeons did’.

To determine whether Mr Botchit satisfied the standard of care, the courts will look to see if what Mr Botchit did was accepted practice. There may be several different standard medical practices. In Bolam, McNair J said, ‘…as long as it is remembered that there may be one or more perfectly proper standards; and if a man confers with one of those proper standards then he is not negligent’.

In determining whether a particular health care professional has been negligent, the ‘Bolam test’ asks whether the professional has ‘acted in accordance with a practice as a proper by a responsible body of medical men’.

Mr Botchit also owed Ahmed a duty of care as he was his patient and there was sufficient proximity between them and it was fair, just and reasonable to impose duty on him. In the case of Hunter v Hanley [1955], which was before the Bolam decision, it was said doctors should be given some latitude to try new treatment. Mr Botchit used a new pioneering method of surgery on Ahmed’ spinal cord. As a result, it left him paralysed from the waist down. 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]. 

---