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Common Medical Law | Free Medical Law Essay

What avenues can Mr Montgomery pursue in dealing with any concerns that he may have as a result of his time in the hospital. What are the possible consequences for the medical staff involved in his care?

As a general rule, medical treatment, even of a minor nature, should not proceed unless the doctor has first obtained the patient's consent. This principle applies in the overwhelming majority of cases but there are limited circumstances in which a doctor may be entitled to proceed without this consent. However a case can be made out when the interests of a third party or of society itself are involved, which is not relevant in this case. In the case of Mr Montgomery and Dr Varty, it is clear that Dr Varty obtained the requisite permission for a blood transfusion, however the same cannot be said for the amputated leg.

The law is committed to the principle of respect for patient autonomy. A patient's competence can be successfully challenged if it can be shown that he does not comprehend or absorb information or if he cannot balance this information against other considerations when making his choice. This is not an issue in this case. The requirement that the patient must actually comprehend the information is not easy to assess-it can depend as much on the amount of information which is given to the patient and the manner in which it is provided as on the capacity of the patient to understand. This imposes an obligation on medical staff to ensure that actual understanding is reached and this, in itself, is paradoxical given that treatment staff might not want the patient to understand if they disagree with the nature of his or her decision. This has the potential of encompassing elements ranging from the general aim of the procedure to the risks and the consequences of refusal and beyond.

Mr Montgomery has two potential avenues for dealing with this matter. One of which is to bring a claim under negligence that is an argument could arise under the head of 'involuntary treatment', if Mr Montgomery insists that treatment was given against his (the patient's) expressed wishes. On the other hand, he could bring a battery claim that is if it turns out that he was not allowed an opportunity to consent to treatment that is where the matter was never raised to him. Administration of treatment, and particularly surgery, in the absent of consent, constitutes assault, battery or trespass to the person. This would occur in a case where it comes to light that the issue of amputation was never discussed.

From the brief facts it is difficult to advise Mr Montgomery on the more suitable avenue. Although, it is apparent that Mr Montgomery reveals some concern about the use of his leg, it is unclear whether this was an unprovoked gesture or whether it was a response to a matter that had been discussed earlier. If it was a response or even a reiteration of his objections to amputation then this will be translated to mean that he actually objected to the permission and Mr Montgomery will be entitled to bring a negligence claim.

If on the other hand, it can be shown that the risk of amputation was never brought to Mr Montgomery's mind and the permission to undergo such a treatment was never obtained, then a battery claim should be pursued. It would be another matter entirely if Dr Varty would not prior to the operation have reasonably expected to amputate in all the circumstances and it was such an urgent treatment that was necessary during the course of the general treatment. In this instance it would be doubtful if any such claim can thus arise.

Non-consensual medical treatment entitles the patient to sue for damages for the battery which is committed. An action in battery arises when the plaintiff has been touched in some way by the defendant and when there has been no consent, express or implied, to such touching. All that the plaintiff need establish in such an action is that the defendant wrongfully touched him. It is unnecessary to establish loss as a result and, therefore there is no problem as to the causation of the damage to be overcome. Thus, an action for battery is the suitable remedy if a patient has refused to submit to a procedure but the doctor has, nevertheless, gone ahead in the face of the refusal. Alternatively, an action can arise under negligence where the doctor has been negligent in failing to obtain the consent of the patient. Here, it will be possible for the doctor to base a claim on the tort of negligence in failing to obtain the consent of the patient. This then creates the problem of actual causation.

Once the patient is informed in broad terms of the nature of the procedure and consent is given; an action for negligence is the proper remedy if there is a failure to disclose risks. The problem in negligence actions based on a lack of consent is, therefore, that of causation-the court must be satisfied that the defendant's failure to obtain the valid consent of the patient was, in fact, the cause of the patient's injury.

In the circumstances, all will depend on the specific sequence of events, what was specifically said to Mr Montgomery as discussed above.

Nurse Magda Withers

The question here is whether the conduct of nurse Magda Withers amounts to a breach of duty of care, which she owed to Mr Montgomery? Fault is the theoretical underpinning of the law. Mr Montgomery will have to prove that the defendant's negligence caused his injuries. It is axiomatic that the nurse owes a duty of care when treating a patient. Vicarious liability will arise with nursing staff, which are provided by the hospital in this case, Melchester General Health Care Trust for the care of the patient, and the hospital is paid by the patient or on behalf of the patient, for the services of the nurses. It is established that a health authority carries vicarious liability for all medical, surgical, nursing or paramedical staff of whatever grade. A link will not be difficult to show here because a direct consequence of the drug administered on Mr Montgomery was vomiting and weakness. The extent of the resultant injury might be of some concern. However negligent the nurse, no action can be successful unless the negligence causes damage or injury. If the negligence made no difference to the outcome of the disease, there is no cause of action. What is the standard of care expected from the nurse?

The main question in relation to nurse Magda Withers's mistake is whether the nature of the mistake could be described as excusable. The most important distinction here is that to be made between a medical mistake which the law regards as excusable and a mistake which would amount to negligence. In the former the court accepts that ordinary human fallibility precludes liability while, in the latter, the conduct of the defendant is considered to have strayed beyond the bounds of what is expected of the reasonably skilful or competent doctor. Use of the wrong drug will often lead to the imposition of liability.

Whether Mr Montgomery will succeed on a negligence case against the hospital concerning the nurses' actions will depend on the nature and extent of the injuries sustained. From the brief facts it does appear that the weakness and confusion suffered by Mr Montgomery may have been momentary, hence there might not be a need to bring a claim. However, if there are long-term effects of the nurses' actions then he will certainly be able to bring a negligence claim, which will entitle Mr Montgomery to damages to injuries sustained as a result of the negligence. There is no question about nurse Magda Wither's duty of care and causation therefore a negligence claim would not be problematic if the resultant injury can be identified.

The possible consequence for Nurse Magda Withers is that she will face a disciplinary hearing or some sort of warning concerning her not completing an incident report form and administering the wrong drug.. All will depend on the procedure in place at the hospital.

Hilda Polanski

A general Common law duty is imposed on a doctor to respect the confidences of the patients. It has been affirmed by case law that there was a public interest in a legally enforceable protection of confidences received under notice of confidentiality. There are three elements required to establish a breach of the obligation. First the information divulged must have the necessary quality of confidence about it; secondly, that information must have been imparted in circumstances importing an obligation of confidence; and thirdly, there must be an unauthorised use of that information, probably also with some evidence of detriment to the party to whom the duty of confidence was owed. In Hunter v Mann, the court accepted that the doctor, is under a duty not to [voluntarily] disclose, without the consent of the patient, information which he, the doctor, has gained in his professional capacity.

In this case nurse Magda Withers has gone ahead to disclose information that is potentially sensitive without the requisite consent from Mr Montgomery. Disclosure of the fact of a blood transfusion is arguably a personal and sensitive topic. Sensitive personal data are defined as data relating to racial or ethnic origin, political opinions, religious or philosophical beliefs, and the processing of data concerning health or sex life. In addition, the circumstances did not demand disclosure by nurse Magda Withers. She didn't have to disclose those to Hilda Polanski. There is also nothing to suggest that Hilda Polanski is part of Mr Montgomery's family which will allow disclosure in limited circumstances. Even if nurse Magda Withers pre supposed that Hilda Polanski was a spouse, the rule protecting confidentiality still exists. Confidential codes of practice imply some qualification of an absolute duty of professional secrecy. In nurse Withers case, the disclosure made was made without consent and it is not hard to see a breach of confidentiality. Mr Montgomery will be entitled to inform the hospital authorities and follow procedures of complaint as against nurse Withers.

BIBLIOGRAPHY

• Irwin S, Fazan C, Allfrey R, Medical Negligence Litigation, Legal Action Group 1995
• Mason J K, McCall Smith R A, Laurie G T, Law and Medical Ethics, 6^th edition: Butterworths
• Kennedy I & Grubb A, Medical Law, Butterworths: 2000

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