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.

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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.

  1. Duty of care – reasonable forseeability, Proximity, just and reasonable
  2. Breach of this duty
  3. 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

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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;

  1. The information must have the necessary quality of confidence about it
  2. It must have been imparted in circumstances importing an obligation of confidence
  3. 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, ...

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