Informed Concent
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- Created by: Amy
- Created on: 23-11-17 19:02
Collins v Wilcock (1984) – Definition of Battery.
The intentional and direct application of force to another person is a battery, consent of a competent patient provides a defence.
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Schweizer v Central Hospital (1974) – Consent to a Battery, different act
patient consented to an operation on his toe, but due to a mix up a spinal fusion operation was performed. The surgeon was liable in battery.
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Chatterton v Gerson (1981) – consent must be ‘real’ informed in broad terms
Bristow J mentioning a 1940 unreported case where a boy went to hospital for tonsillectomy but due to an admin error was circumcised instead – a clear battery. Once informed in broad terms of the nature of the procedure intended, consent in real.
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Allan v New Mount Sinai Hospital (1980) – patient places limits on what the doctor may do
‘don’t touch my left are’ but the doctor did anyway and there was a reaction, liable for battery, despite the face the reaction was unforeseeable.
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Appleton v Garrett (1996) – Fraud by the defendant
dentist carrying out unnecessary dental treatment: no consent so the dentist was liable in battery.
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R v Richardson (1999) – Fraud by the defendant
dental treatment was carried out by a dentist struck off the dental register: the patients’ consent was valid.
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Montgomery v Lanarkshire Health Board (2015) – duty to inform is not a duty to bombard with information
Technical information the patient will not reasonably be expected to grasp.
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Taylor v Shropshire Health Authority (1998) – the absence of a consent form is not proof that a patient did not consent, oral consent
Consent forms immediately before operation are window dressings according to Popplewell, designed to avoid the suggestion P has not been told.
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Bolam v Friern Hospital Management Committee (1957) – breach of the duty to care
Not negligence ‘if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’.
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Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985) – three different approaches on how breach should be determined.
Diplock – straight bolam test. Scharman – medical opinion of what is best should not override P’s right to decide for himself if he will submit to it. Bridge, Keith and Templeman – somewhere between the two.
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Blyth v Bloomsbury HA (1993) – post-Sidaway case, a restrictive approach
Court followed Diplock’s judgement in Sidaway to just apply Bolam test. Case presented his view as the majority judgement.
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Pearce v United Bristol Healthcare NHS Trust (1999) – bye-bye Bolam? Combine prudent patient standard with a reasonable doctor standard
if there is a significant risk the doctor should inform the patient of that risk. Still the approach of a reasonable doctor, but a reasonable doctor would inform of a significant risk.
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Smith v Tunbridge Wells HA (1994) – bye-bye Bolam? ‘neither reasonable nor responsible’
28 year old not warned of risk of impotence inherent in rectal surgery this was held as neither reasonable nor responsible.
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Wyatt v Curtis (2003) – bye-bye Bolam?
Patient was pregnant and had chicken pox, she should have been warned of the risk this posed to her child.
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Spencer v Hillingdon (2015) – odd decision
Risks that would not be significant pre-operation were seen as significant post-operation.
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Birch v University College London Hospital NHS Foundation Trust (2008) – warning C of alternatives
The duty to inform a patient of the significant risks will not be discharged unless she is made aware that fewer, or no risks are associated with another procedure.
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Nicholas v Imperial College NHS Trust (2012) – D must warn C about alternatives
D’s failure to discuss alternatives to doing nothing was negligence (but causation was not established).
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Cooper v Royal United Hospital Bath NHS Trust (2005) – the manner of communication and understanding
Poor communication of risks that led to C being understandably confused amounted to a breach of duty to inform.
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Al Hamwi v Johnson (2005) – the manner of communication and understanding
C misunderstood what she was told of risks and overestimated the risk of miscarriage. Held the duty to warn does not extent to ensuring the patient actually understood information clearly communicated.
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Montgomery v Lanarkshire Health Board at [90] – Kerry and Reed
The doctor’s advisory role involved dialogue, to ensure C understands seriousness, risks and alternatives to make an informed decision. Information must be comprehensible. Don’t bombard with technical information.
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Jones v North West Strategic Health Authority (2010) – Causation, if they would consent even if warned the breach doesn’t cause the damage.
Claim failed – JW who would unlikely have consented to a caesarean section with its intreased risk of the need for a blood transfusion.
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Smith v Barking, Havering and Brentwood HA (1994) – causation – C now has the benefit of hindsight.
If a reasonable patient would have undergone the treatment if warned then the onus is on the claimant to demonstrate that they would not have undergone the treatment. Burden on them to prove they would have behaved unreasonably.
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Chester v Afshar (2005) – the hesitant patient
Not warned of 1-2% risk with surgery – negligent. C argued she would have sought a second opinion and undergo the operation at a later date. HL allowed her claim to succeed, causation established.
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Other cards in this set
Card 2
Front
patient consented to an operation on his toe, but due to a mix up a spinal fusion operation was performed. The surgeon was liable in battery.
Back
Schweizer v Central Hospital (1974) – Consent to a Battery, different act
Card 3
Front
Bristow J mentioning a 1940 unreported case where a boy went to hospital for tonsillectomy but due to an admin error was circumcised instead – a clear battery. Once informed in broad terms of the nature of the procedure intended, consent in real.
Back
Card 4
Front
‘don’t touch my left are’ but the doctor did anyway and there was a reaction, liable for battery, despite the face the reaction was unforeseeable.
Back
Card 5
Front
dentist carrying out unnecessary dental treatment: no consent so the dentist was liable in battery.
Back
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