Medical Law & Ethics - How to answer an informed consent question PDF

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15th November 2019

Medical Law & Ethics How to answer an informed consent question? I.

Introduction

This question deals with informed consent. Patients with capacity must give consent to their medical treatment – touching a person without consent is prima facie unlawful. Doctors should inform patients because:   

They can avoid legal liability Respect for patient autonomy Enhances healthcare

However, often doctors don’t inform patients because:  They don’t have the time  Too much information can make people anxious  The information is too complex  Patients do not want to be informed  Valid consent is a defence to the battery. Consent is valid when:  It has been given voluntarily  By someone who has the capacity to consent  Who understands what the treatment involves. Consent can be oral, written or implied. Usually there will be a consent form, this will merely be evidence of consent, but will not be conclusive – Chatterton v Gerson; Montgomery v Lanarkshire Health Authority.  Absence of a consent form is not proof that P did not consent – there might be oral consent with appropriate explanations – Taylor v Shropshire Health Authority. Slater v Baker and Stapleton – “It is reasonable that a patient should be told what is about to be done to him”

II.

Is it a battery?

Amount of information:  Chatterton v Gerson: P only needs to be informed in broad terms in relation to the nature of the procedure which is intended.

15th November 2019 Collins v Wilcock: The intentional and direct application of unlawful force constitutes the tort of battery. There are three elements to a battery: 1. A direct application of force – direct touching 2. Intention – there must be an intention to act 3. Actionable per se D will be liable to all direct consequences of the touching 3 categories of batteries: A. Doctor’s mistaken belief that the consent is valid - Chatterton v Gerson; Schweizer v Central Hospital B. Fraud and Misrepresentation – must relate to nature of the procedure – Appleton v Garret; Chatterton v Gerson; R v Flattery; R v Tabassum R v Richardson – the misrepresentation was as to the status of D in the medical community not the procedure C. Doctor exceeds P’s stated limit – where P expressly states limitations on what D can do – Allan v New Mount Sinai Hospital

III.

Is it negligence?

NB – Difference between negligence in terms of advice and in terms of diagnosis and treatment – latter would amount to medical malpractice. P agrees to the procedure but is not told by D about the risks involved in the procedure. Margaret Brazier – Educated, middle-class patients who are not intimidated by a consultant’s expertise, would have access to more and better information than frightened, inarticulate patients. Also… it is sometimes possible that the failure to obtain consent at all could amount to negligence – Border v Lewisham and Greenwich NHS Trust. 1. D owed a duty of care A duty of care between a doctor and a patient is said to arise when a doctor-patient relationship comes into being. A duty of care arises as soon as the claimant presents himself to hospital – Barnett v Chelsea & Kensington Hospital Management Committee A duty of care arises as soon as the claimant walks through the casualty door, it doesn’t matter if he talks to medical or non-medical staff – Darnley v Croydon Health Services NHS Trust. One aspect of a doctor’s duty of care is to provide their patients with information.

15th November 2019 Third Party? West Bromwhich Albion Football Club Ltd v El-Safty – There will be no duty of care to the third party. Problem – how much information should you give? 2. The duty was breached Old case law – Bolam v Friern Hospital Management Committee – No negligence if acting in accordance with a practice accepted by a responsible body of medical opinion. But then – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital – Disclosing information is a part of the duty of care owed to the patient but D may withhold information about the risks if he thinks the disclosure would be harmful to the patient. (Therapeutic Exception) Emma Cave – Unnecessary… principle of autonomy is being undermined. Conservative approach in Blyth v Bloomsbury HA and Gold v Haringey HA. More liberal approach in Pearce v united Bristol Healthcare NHS Trust; Birth v University College London Hospital NHS Foundation Trust and Nicholas v Imperial College NHS Trust Further development (CURRENT LAW): Montgomery v Lanarkshire Health Authority – D is under duty to take reasonable care to ensure that P is aware of any material risk involved in any recommended treatment, and of any reasonable alternative or variant treatments. Test of materiality – would a reasonable person in the patient’s position be likely to attach significance to the risk, or should D be aware that the particular patient would be likely to attach significance to it?” Example of material risk: 10% risk of stroke - Pearce v united Bristol Healthcare NHS Trust; Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital. But where the consequences are very serious, it shouldn’t be reduced to percentages – Montgomery v Lanarkshire Health Authority. When risk is very negligible, Montgomery does not apply – A v East Kent Hospitals University NHS Foundation Trust GMC – D needs to attempt to discover P’s particular concerns or priorities through appropriate questioning. Rob Heywood and José Miola – It is a good thing for the ethical standards demanded of doctors by GMC to exceed the standard of care required by law.

15th November 2019

Relevant factors: 

Age and gender – Smith v Tunbridge Wells HA (1994)

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Viable alternative to the treatments given – Birch v University College London Hospital NHS Foundation Trust (2008)

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Risk quantification – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985); Pearce v United Bristol Healthcare NHS Trust (1999)

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Medical opinion – Montgomery v Lanarkshire Health Board (2015)

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Did P ask D questions? If they did, what was asked and how did D answer? – Montgomery v Lanarkshire Health Board (2015)

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Was the information communicated adequately? – Cooper v Royal United Hospital Bath NHS Trust (2005); Smith v Tunbridge Wells HA (1994); Montgomery v Lanarkshire Health Board (2015)

 What is the dialogue required by doctors? Angelika Reichstein – It will not always be easy for a doctor to establish how much information an individual patient wants Roderick Bagshaw – There is an issue with how far doctors need to engage in dialogue when their recommendation is “wait and see” if the patient’s symptoms persist. GMC suggests that doctors should actively try to ensure that patients have actually understood the information that has been provided. Professionals must take reasonable steps to present information in a way that patients will be able to understand and to ensure appropriate context. Lybert v Warrington – Warning not emphatic, timing was bad, and circumstances were not appropriate. Al Hamwi v Johnston – D has to take reasonable steps to ensure the patient has understood the nature of the treatment, even where the patient does not want to because he believes he is sufficiently informed. Duce v Worcestershire Acute Hospital NHS Trust – What if D is not aware of the risk? a. What did D know/ought to have known about the risk? b. If he did not know or ought to know – claim fails c. If he did know of the risk, court applies test of materiality.

When there are evidential problems, the court will choose the most credible version – Hassel v Hillingdon Hospitals NHS Trust

15th November 2019 3. The breach caused the claimant’s damage. 3 strands of causation must be addressed. a. They had suffered an injury that has made them worse off than they would have been if the procedure had not been performed; and b. Risk not warned of actually materialises; c. C proves that had s/he been warned, procedure would have been declined.

Step 1 – But for “But for D’s failure to warn, P would not have undergone treatment” Smith v Barking, Havering and Brentwood (HA) – onus is on the claimant to demonstrate that they would not have undergone treatment Coming across as intelligent/sensible helps P with credibility – Birch v University College London Hospital Foundation Trust With hesitant patient – P can demonstrate that they would have undergone the procedure at a later time – Chester v Ashfar  Failure to warn of the risk deprived P of time to reflect  Because the risk was so small, it would probably not have materialised at a later time. Courts avoid applying Chester – Correia v University Hospital of North Staffordshire NHS Trust. Interference with autonomy is not a separate head of loss – Shaw v Kovac....