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.

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, 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

1. Seek patients’ consent to disclosure of any information wherever possible, whether or not you judge that patients can be identified from the disclosure.
2. Anonymise data where unidentifiable data will serve the purpose.
3. 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

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