In order to make a successful claim in the tort of negligence, the patient must establish that the defendant owed them a duty of care.
The case scenario focuses on two people who were treated by Mr Blewitt, the first person Frank involved in the emergency department and the second person being Harvinder. The problem here is concerned with medical malpractice, competent and incompetent adults, consent and confidentiality.
In order to make a successful claim in the tort of negligence, the patient must establish that the defendant owed them a duty of care. To prove this, three elements laid down in Caparo Industries plc v Dickman1 must be satisfied.
- Duty of care – reasonable forseeability, Proximity, just and reasonable
- Breach of this duty
- The breach was the cause of harm
Once Frank was omitted to casualty, the hospital came under a duty to provide care and treatment for Frank. In Barnett v Chelsea and Kensington HMC2 the defendants’ were not liable for their breach because, the breach was not the cause of injury.3 The duty of care also applies to Harvinder, by the NHS hospital, and their employee, Mr Blewitt. The proximity is the patient-doctor relationship. It was just and reasonable to treat the patients.
The standard of care for all medical malpractices for health care professionals and providers’ was established in Bolam v Freirn HMC4. The case saw the birth of the Bolam test, where ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’5
A person should not be exposed to a risk of damage unless he has agreed to run the risk and they cannot agree to the risk if all the information is not provided. Doctors need to see if the patient has capacity to make a competent decision and that they have been informed of the risks and procedures of the treatment.
The incompetent patient is in a different position. Treatment decisions for incompetent patients’ are assessed by, what is in the ‘best interests’; this test is determined by reference to the views of a responsible medical practice and uses the Bolam test6
Held in Re C (Refusal of Medical Treatment)7, ‘If the patient’s capacity was below that level, the doctors are under a duty to treat him in a way which their clinical judgment determines to be in his best interets’.8
The House of Lords said in Re F (Mental Patient: Sterilisation)9 ‘no one authorised by law can give consent on behalf of incompetent adults.’ Where a patient was incapable of giving consent, it was lawful at common law to give the patient treatment … such treatment must be in the best interest of the adult.10
In emergencies, doctrine of necessity, used for doctors to treat the patient in the circumstances and do more than is reasonably required in the best interest of the patient. Doctors may proceed without consent, but may have to justify this either by defence of necessity or implied consent. The Implied consent is, where the doctor is saying that, if the patient were competent, they would consent to the treatment.
If the doctor proceeds without consent, or some other lawful authority, the doctor may be liable in trespass for the tort of battery.
The doctrine of necessity applied in Marshall v Curry11 it was justified for the doctor to operate, as there was a serious treat to the patient’s health. In Murray v McMurchy12 the doctor sterilised the patient without obtaining consent. This constituted a trespass because it was not necessary at the time. The doctor should have discussed this with the patient before hand.
During the course of treatment, the doctor discovers some other condition that they believe requires treatment, but for which they have not obtained the patient’s consent.13 This is a difficult matter for the doctors to make, do they continue with the additional treatment or alternatively wait for the patient to regain consciousness in order to obtain a valid consent.
Now should Mr Blewitt after completion of the life saving treatment on Frank, waited for Frank to regain consciousness and then discuss the requirement of having another operation to remove the rare tumour, or simply do what was best for Frank and remove the tumour.
In F v West Berkshire HA14 it was said, where a patient is ‘temporary or permanent, lack capacity to give consent to the treatment . . . which is necessary to preserve the life, health or well-being of the patient, may be lawfully be given without consent...’15
A problem, which arises, is where the patient is religious and unconscious. The doctor is unaware of any objections. Provided the ‘best interests’ patient test is satisfied, no liability is attached. It is clear that a patient’s next of kin has no legal right to consent or refuse consent in the case of an adult patient.16 Re T 17 The doctor would be liable if he knew about the patient’s religious beliefs and went ahead with treatment.
However, in Re T (a minor) (medical treatment)18 ‘…the court emphasised that it retained the ultimate power to decide the matter.19
It is clear that competent adults often wish to allow details of their conditions to be discussed with friends and relatives. It is probable that the courts would regard such disclosure in relation to incompetent patients as permissible where professionals judge that it would be in the patient’s best interest.20
This is a preview of the whole essay
Patients within the NHS do not form into a contractual relationship with the doctor, therefore equity will intervene to protect confidences, and three requirements must be satisfied;
- The information must have the necessary quality of confidence about it
- It must have been imparted in circumstances importing an obligation of confidence
- There must be unauthorised use of the information to the detriment of the person who communicated it21
It must be remembered that the General Medical Council does not have the force of law.22 Being registered with the GMC gives rights and privileges. In return, there is a duty to meet the standards of competence, care and conduct set up by the GMC … This information must not be given to others unless the patient consents or you can justify the disclosure … 23
The Human Rights Act 1998 Article 8- the right to respect private life maybe overridden for the, ‘protection of the public health’. It must be noted that the law provides no absolute protection for medical information.24
Lord Keith, in A-G v Guardian Newspapers (No.2)25 said, “The law has long recognised that an obligation of confidence can arise … relationships of doctors and patients…”
Mr Blewitt would need to adhere to the following guidelines
- Seek patients’ consent to disclosure of any information wherever possible, whether or not you judge that patients can be identified from the disclosure.
- Anonymise data where unidentifiable data will serve the purpose.
- Keep disclosures to the minimum necessary.26
Point 1, above cannot be achieved due to Frank being unconscious, therefore consent could not be obtained. Disclosures may be made only where they can be justified in the public interest.27 Once all means have been satisfied and it is found that the patient is not competent, only then personal information may be disclosed in the public interest, the benefits of the public outweigh those of the patient in keeping the information confidential. The courts alone can determine the ‘public interest’.28
Disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to risk of death or serious harm. 29 The disclosure should be promptly made to an appropriate person or authority. Taking this point into account, Mr Blewitt’s actions to disclose the information are justified, in that, he was notifying others who worked at the Chemical Plant and local residents of the potential risks.
Lord Goff, stated, “…public interest may be outweighed by some other countervailing public interest which favours disclosure” 30
In W v Egdell31, the court justified disclosing information of a patient who was a danger to the public, however the court held that there was a public interest in maintaining confidentiality.
It is in the public interest that the press report on matters that concerns the public interest. With regards to medical confidentiality, the public interest for the freedom of the press must be balanced against the public interest in maintaining patient confidentiality, this was established here, as Franks name was not published.
There is a duty to inform the local authority under the “Reporting of Injuries, Disease and Dangerous Occurrences Regulations 1985. Mr Blewitt will be guilty of an offence if he failed to disclose such information as it is for the good of society.
If Mr Blewitt failed to pass on the relevant information and as a result a third party suffers injury.32 In light of this would the other employees at the chemical plant have been affected in negligence if Mr Blewitt had failed to inform them.
Duties of care are normally expressed in such more restricted terms, are the other workers are likely to be directly affected by the defendant’s failure to exercise reasonable care. 33 Employees at Chemco are a foreseeable group who are likely to be endangered. Although the public is too wide to hold a duty of care in negligence, Egdell, identifiable group of workers may not.
In conclusion I would not hold Mr Blewitt liable for the consent and also the liability issues raised above.
In the Harvinder case, Mr Blewitt used a technique, which was criticised by over 30 surgeons. Certain practices are normal and accepted by the medical profession. It does not signify that doctors’ cannot try innovative treatments. If the circumstances indicate that there were no good reasons for departing from the accepted practice, then Mr Blewitt will be found liable.
In Maynard v West Midland Regional HA34 the House of Lords held, the defendants’ were not negligent, as they had conformed to a practice, which was approved by one responsible body of medical opinion.
Otton LJ, stated that in Defreitas v O Brien35, “Given that two of the 11 spinal specialists’ had appeared and supported the defendant’s actions, the plaintiff had therefore failed to discharge the burden of proof … From this it would be quite proper to conclude that, in English law, a minimum of two is needed to constitute a group for the purposes of the Bolam rule.” 37 Where as in Thake v Maurice38, the defendant failed to comply with his usual practice and he was found negligent.
Criticism of Bolam arose in Hills v Potter39 Hirst J, said that, ‘I do not accept that …by adopting the Bolam principle, the court in effect abdicates its power of decision to the doctors. In every case the court must be satisfied that the standard . . . upheld by a substantial body of medical opinion, and that this body of medical opinion is both respectable and responsible…’40
It is said, numbers play a part in determining whether the practice is accepted and therefore responsible. In examining the practice the courts must see who has adopted the practice – thus the court counts heads …the greater the number of followers …the more likely the practice is to be regarded as being accepted and responsible. This implies that the higher the number of followers for the practice, the higher the degree of respectability. 41
This information suggest that if a body of two people indicate that the pioneering methods of surgery is acceptable, then it must be accepted practice. In conclusion to this stance taken in Defreitas suggests with the backing of two other surgeon, Mr Blewitt is not be liable for using the innovative practivce.42
Dillon LJ said in Bolitho v City & Hackney HA43 that the courts could only reject the medical practice if, ‘ . . . the court, fully conscious of its own lack of medical knowledge and clinical experience … i.e. views such as no reasonable body of doctors could have held’.44
The House of Lords adopted a revised explanation of Bolam. They emphasised that only ‘responsible’ medical opinion was relevant and stated that where expert opinion was not capable of withstanding logical analysis then the judge would have authority to reject it. Which in turn, makes a strong statement of law that courts should set the standards for the medical profession.45 Dillon LJ continued, the judiciary themselves have no clinical expertise and therefore very few judges would be daring enough to question medical matters due to their lack of knowledge.46
Furthermore, in, Hucks v Cole47, Cole was found negligent even though he had support from medical experts. Sachs LJ stated that, it was not a case of conflict between two schools of thought, but a case ‘of doctors who said in one form or another said that they would have acted or might have acted in the same way as the defendant did…’48 The criticisms continued, courts should examine the medical expert witnesses and not simply except this at face value and agree with whatever is said. As this is law, Harvinder’s claim would fail under medical malpractice, due to the Bolam test.
We will now look to see whether Mr Blewitt should have informed Harvinder of the potential risk of the operation. The general requirements for a valid consent are;
1.Sufficient understanding -mental capacity or competence
2.Decision must be voluntary
3.Sufficient information about the proposed treatment
In Rogers v Whitaker49 ‘the doctor had a duty to warn a patient of a ‘material risk’ inherent in a proposed treatment’50 would the patient, have consented to the treatment if they knew of the potential risks involved? If Harvinder had known, would he add importance to whether he wanted this technique to be used? This is highly unlikely, who in the right mind would choose to be paralysed.
The Rogers case may be contrasted to Sidaway v Governors of Bethlem Royal Hospital26, The House of Lord stated, doctors’ will normally not be held for a breach of duty, by failing to warn of risks provided other doctors’ would similarly not have warned of them.51
In Sidaway, the plaintiff was not informed of the risk of damage to her spinal cord and thus left paralysed. The House of Lords held, the surgeon followed an approved practice of neurosurgeons in not disclosing the risk of damage to the spinal cord therefore they were not held liable.
Lord Scarman commented, ‘…if the material risk were not disclosed, then the doctor would be negligent’ . . . ‘the court should ask whether a reasonable person in the patient’s position would have regarded it as being sufficient’52
Lord Bridge stated, “ …If a responsible body of practitioners would have accepted (at the time) that it was legitimate not to discuss the risk of paralysis, then her case had to fail…”53
Lord Templeton suggested, there was an obvious risk to Sidaway’s spinal cord and there was no need for the doctor to explain this. Some patients do not want to know the details of their care and place complete trust within the doctor. If the patient would like to know, then surly they would ask the doctor. It would be for the courts to decide whether an explanation would be sufficient to alert patients of potential risks.54
The final decision lies with patients’, who are entitled to reject medical advice. However, patients were not entitled to all the information available, for to tell them everything might conflict with the doctors’. A court would find a doctor liable in negligence if the patient were deprived of the information necessary to achieve this purpose.55
For Harvinder’s claim in negligence to be successful, he would have ascertained, there has been a breach, which was the failure to provide adequate information. Furthermore this breach caused injury to Harvinder.
In Smith v Tunbridge Wells HA56 where, ‘a body of experienced competent surgeons’ would not have warned the patient of the risk’. The judge regarded this as ‘neither reasonable nor responsible’ and found the surgeon negligent for failing to disclose the risk. 57 The case is not binding on subsequent courts and is arguably inconsistent with the decision of the House of Lords in Maynard.
Harvinder may rely on the outcome of this decision in that he was uninformed of the risk of being paralysed. In Schloendorff v New York Hospital58, Cardoza. J., stated,
“Every human being of adult years and sound has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault”.
Now, because all information about the treatment was not provided to Harvinder, then with affect there is no consent. Mr Blewitt failed to comply with the standard of care.
‘I will prescribe regimen for the good of my patients according to my ability and my judgement and never do anyone harm’.59 Harm was already inflicted, thus Harvinder being paralysed.
In Gold v Haringey HA60, the Court of Appeal accepted the argument that the duties of doctors could not be subdivided, and that it followed that the Bolam test applied to all aspects of their work.
Harvinder now must prove both factual and legal causation, The factual cause, is proved on a ‘balance of probabilities’, as a matter of fact that Mr Blewitt’s negligence was the ‘physical’ cause the paralysis
We next apply the ‘but for test’. Would Harvinder have been injured ‘but for’ the treatment used by the defendant? Or were the serious injuries to Harvinder’s neck and back severe enough to leave him paralysed? This can be a defence Mr Blewitt may adopt, but only if he can have Bolam to support it. The ‘but for test’ was satisfied in Chappel v Hart61.
McHugh J, stated, ‘causation for legal purposes is concerned with allocating responsibility for harm or damage that has occurred.’62 ‘ ... In the context of a medical negligence claims, generally the courts have held doctors whose improper conduct is a ‘but for’ cause of their patients’ injuries liable without further ado’63
Gaudron J’s view on this was, ‘if another surgeon could have performed the operation with less risk … failure to warn … did materially increase the risk of injury…’64 This can be support for Harvinder, provided he was warned beforehand.
The doctor has a special duty to advise his patients of risk of treatment, the principle reasoning for imposing such a duty is ultimately not to reduce the likelihood of the risks materialising. . It is to promote the patient’s decision-making autonomy: the latter’s ‘right to decide for himself whether or not to submit to the treatment in question’ by assessing the various risks and benefits.65 In failing to mention the risk’s existence he has warranted that it will not materialise, at least in the normal course of events.66
In cases of more than one cause, it must be shown that the defendant’s negligence caused or materially contributed to the injury. As stated in Wilsher v Essex Area HA67, “where a person created a risk and injury occurred within that area of risk, the burden of proof was reversed and the defendant had to prove that his negligence was not a cause …the burden of proof of causation lay with the plaintiff throughout the case, plaintiff had to prove that the breach of duty was at least a material contributory cause of the harm.69
The ‘loss of chance’ doctrine permits a Harvinder to sue for the loss of a chance, of avoiding a particular outcome, rather than the outcome itself. Therefore Harvinder must prove ‘on a balance of probabilities’ that Mr Blewitt caused or materially contributed to his injury, if the contribution, is greater than 50%, Harvinder is entitled to recover damages in full from Mr Blewitt.
In Hotson v East Berkshire HA68, the House of Lords held that the patient had failed to establish that the defendant’s negligence had materially contributed to the harm …‘it must be shown that the treatment would probably have worked’70
Harvinder may bring about a claim under ‘vicarious liability’. In Vicarious liability claims, the doctor has breached their duty. In majority of cases the NHS employer will be sued under the principle of vicariously liability for the actions of their doctor’s.
The courts need to take into consideration the following. First it must be ‘fair and reasonable’, No Price can be put on the value of a limb or organ, Damages, include pain and suffering and loss of amenity.
The money Harvinder would have earned if the accident did not happen and that which will be earned in light of disability suffered calculated on an annual sum. Multiply this by his life expectancy, courts will only multiply this by 18 years, even though patients’ may live longer.71
WORD : 3271
1 Caparo Industries plc v Dickman  1 All ER 568; 2 AC 605
2 Barnett v Chelsea and Kensington Hospital Management Committee  1 All ER 1068
3 Cooke, J. Law of Tort (5th Edition, Longman, London 2001)(Cited in this paper as ‘Cooke 2001’) p112 details taken for Barnett case
4 Bolam v Friern Hospital Management Committee  1 WLR 582;  2 All ER 118
5 Montgomery, J. Health Care Law (2nd Edition, Oxford University Press, London 2002/2003)(Cited in this paper as ‘Montgomery 2002/2003’) p169 – standard of care, relies on authors text
6 Fox M & McHale J, In Whose Best Interest? 60 The Modern Law Review 1997 p700 – slightly relies on text
7 Re C (Refusal of Medical Treatment)  1 FLR 31
8 Treatment without consent, Medical Law Review, Volume 2, 1994 – p92 held in Re C
9 Re F (Mental Patient: Sterilisation)  2 AC 1
10 Secondary source of information used – Lecture notes
11 Marshall v Curry (1933) DLR 260
12 Murray v McMurchy (1949) 2 DLR 442
13 Secondary information -Incompetent adult notes
14 F v West Berkshire Health Authority  2 All ER 545
15 Cooke 2001 –p218 Lord Bridge speech in F v Berkshire
16 Ibid - p218 relies slightly on authors text
17 Re T  4 All ER
18 Re T (a minor) (medical treatment)  1 WLR 242
19 Fox M & McHale J, In Whose Best Interest? 60, The Modern Law Review 1997 - p701 Taken from article
20 Montgomery 2002/2003, p273 relies on authors text
21 Jones, M, ‘Medical Confidentiality and the public interest’ (1990) 6 Professional Negligence 16 - p16 three requirements taken here
22 Stauch, M., Wheat, K & Tingle, J., Sourcebook on Medical Law (2nd Edition, Cavendish Publishing, London 2002/2003)(Cited in this paper as “Stauch, M. 2002/2003”) p236 – on GMC taken from text
23 Stauch, M. 2002/2003 – p237 on GMC copied
24 O’Brien, J & Chantler, C. Confidentiality and the duties of care’ 2003 Journal of Medical Ethics 29 - p36 slightly relies on text
25 A-G v Guardian Newspapers (No. 2)  3 All ER 545, 639f
26 Stauch, M. 2002/2003 - p238 principles taken from authors text
27 Ibid - p238 slightly relies on authors text
28 Ibid - p239 Disclosure in the public interest -slightly relies on text
29 Ibid -p240 Disclosure to protect the patient or others – copied
30 Lord Goff in A-G
31 W v Egdell  1 All ER 1089
32 Jones, M, ‘Medical confidentiality and the public interest’ (1990) 6 Professional Negligence 16 - p20 slightly relies on article
33 Ibid - p20 – relies on point made in article
34 Maynard v West Midland Regional Health Authority  1 All ER 635
35 Defreitas v O’Brien  6 Med LR 128
37 Khan, M & Robson, M, ‘What is a responsible group of medical opinion?’ (1990) 11 Professional Negligence 4 - p121
38 Thake v Maurice  1 All ER 497
39 Hills v Potter  3 All ER 716
40 Khan, M & Robson, M, ‘What is a responsible group of medical opinion?’ (1990) 11 Professional Negligence 4 -p122 quote taken
41 Ibid - p122 relies on authors text
42 Ibid - p122 slightly relies on authors text
43 Bolitho v City & Hackney Health Authority  4 Med LR 381
44 Quote by Dillon LJ in Bolitho
45 Montgomery 2002/2003 – p172 – relies on authors text
46 Ibidim (19)
47 Hucks v Cole (1968) 112 Sol Jo 483;  4 Med LR 393
48 Montgomery 2002/2003 p173 copied from book – slightly changed -modified
49 Roger v Whitaker (1992) 175 CLR 479
50 Stauch, M, ‘Taking the Consequences for Failure to Warn of Medical Risks’ 2000 63 Modern Law Review -p261 authors text
26 Sidaway v Governors of Bethlem Royal Hospital  1 AC 871
51 Stauch, M, ‘Taking the Consequences for Failure to Warn of Medical Risks’ 2000 63 Modern Law Review – p262 points considered
52 Montgomery 2002/2003 – p244 – quote from Lord Scarman in Sidaway
53 Ibid - p244 - Lord Bridge in Sidaway
54 Ibid - p245 Lord Templeton in Sidaway
55 Ibid - p245 relies very slightly on authors text
56 Smith v Tunbridge Wells HA  5 Med LR 334
57 Montgomery 2002/2003 - p245 relies on authors text
58 Schloendorff v New York Hospital (1914) (USA) 105 NE 92; 211 NY 125.
59 Hypocritic Oath
60 Gold v Haringey HA  2 All ER 888
61 Chappel v Hart (1998) 72 ALJR
62 Stauch M, ‘Taking the Consequences for Failure to Warn of Medical Risks’ (2000) 63 Modern Law Review - p263 quote taken
63 Ibid – p262 Relies heavily on authors text
64 Ibid - p265 quote taken from Gaudron, J
65 Ibid - p267 Relies heavily on text
66 Ibid - p267
67 Wilsher v Essex Health Authority  1 ER 871
69 Cooke 2001 – p112 Lord Wilberforce quote in Wilsher
68 Hotson v East Berkshire Health Authority  1 AC 750;  2 All ER 909
70 Montgomery 2002/2003 –p185 relies on authors text
71 Ibid - p187 paragraph parts relating to damages