This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
Issue of consent
It can be established that issue of consent and non consensual treatment will arise whereby Mimi is unconscious and unable to give a valid refusal to the operation. Therefore, consent is a very important factor, in determining whether she has given thought to the situation or an ‘implied consent’ has arisen due to the unforeseen circumstances.
It is arguable that a medic cannot perform any treatment, unless they have obtained consent from either the patient, a relative or have obtained permission from the courts. However, where there is a life or death situation present, it may be practicable to assist in immediate treatment which is necessary to save a life.
In law it has been established ‘that a competent adult patient must give her consent to medical treatment.’ This was illustrated in the case of Schloendorff v New York Hospital a case in which Cardozo J quoted:
“Every human being of adult years and sound mind 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.”
Where Mr Quick has carried out the removal of the tumour without prior consultation with Mimi it will give rise to the tort of battery. The case of Mohr v Williams explained the notion that ‘the touching need not be hostile’ hence the claimant was successful in their action for the changes made to the operation that was carried out. Perhaps therefore, the operation carried out was a violation of Mimi’s body and a battery has subsequently taken place.
It must be considered whether Mimi can be classed as an incompetent adult which has arisen where she is unconscious, Mr Quick, may possibly rely on the Doctrine of Necessity with regards to the operation, if it is in the best interests of Mimi that the operation is carried out.
The case of Re F supports the idea of the validity of the doctrine of necessity and where it may apply, as explained by Lord Goff:
‘… for example, a surgeon performs an operation without his consent on a patient temporarily rendered unconscious in an accident, he should do no more than is reasonably required, in the best interests of the patient…’
Thus the operation carried out on the life threatening injuries was practicable and can be justified within reason, if it is carried out in order to ‘preserve the life, health or well being of a patient,’ which it was.
The case also established with regards to incompetent patients the decision must be in line with the ‘Bolam test’ deriving from the case of Bolam v Friern Hospital Management Committee. It was explained by Lord Brandon that: ‘In order that the performance of such operations on and the giving of such other treatment to, such adults should be lawful, they must be in their best interests.’ Hence Mr Quick may argue this as a defence to carrying out the operation. However, the Bolam application still remains to be a controversial issue.
However, it can be debated that by carrying out the further surgery to remove a tumour, Mr quick had exceeded his authority under necessity as also explained by Lord Goff : ‘…the fact that the patient is expected before long to regain consciousness and can then be consulted about longer term measures.’ Consequently an unlawful act may have taken place by Mr Quick as he has not waited for Mimi to come around.
The case of Murray v McMurchy also looked at whether necessity applied ‘[t]he court held that it would have been reasonable to postpone this operation in order to seek her consent.’ Hence, Mr Quick should have waited for Mimi to come around to discuss her options rather than remove the tumour without informing her of any undesirable consequences.
Additionally, in Malette v Shulman necessity was once again a key issue this case however, differs to the scenario in question as the patient had a made a ‘declaration’ whilst she was competent, to refuse a blood transfusion, if required in an emergency. Similarly the patient was brought into hospital unconscious, where the doctor performed surgery against her wishes. In effect this gave a rise to a breach of Article 9 of the ECHR. However, in Mimi’s situation it is uncertain as to what her religious beliefs and values are and it is not clear whether she carried such a document stating her refusal.
An example of where necessity prevailed was seen in the case of Marshall v Curry where it was held ‘that the removal of the testicle was necessary and that it would have been unreasonable to put the procedure off to a later date.’ It may be argued by Mr Quick that the removal of the tumour may fit into a valid form of necessity and the fact that it was necessary to stop it from spreading across the body.
There must be insight into factors regarding Mental Capacity Act which states that ‘an act done or decision made … must be done, or made, in his best interests (s 1(5.)’ The relevant sections which may apply are sections 2-4. There is relevance with regards to section 2 of the act, may be satisfied as Mimi is temporarily unconscious. Mimi’s ‘inability to make a decision’ will satisfy section 3, as she was unable to voice her objections. The ‘best interests’ of the Mimi may satisfy section 4 of the Act.
Arguably the main operation is in Mimi’s best interests and essential in order to save her life which, Mr Quick may debate. However, Mimi’s argument of the fact that her fate was in the hands of a ‘higher super natural authority,’ means that there could be a possible breach of the Act.
A further issue of importance regarding the ‘non consensual’ treatment is that Mimi may argue an infringement upon her human rights. This issue was clarified in the case of Glass v United Kingdom which saw a breach of Article 8 of the European Convention on Human Rights (ECHR) with regards to ‘respect for a private family life’. Hence an application to the courts, would have avoided such illegalities. This may be applied to the situation regarding Mimi however, had Mr Quick sought the court’s approval then he would avoid any likely interferences such as that of Article 3 with regards to ‘inhumane or degrading treatment or punishment.’
In conclusion, it is debateable whether Mimi may have an action in the tort of battery for the removal of the tumour and part of her liver. However, it can be argued on Mr Quick’s part that this operation was a necessity and in her best interests therefore helping to prolong her life. Although in reality he could have waited for her to come around which, strengthens Mimi’s case in relation to damages under the tort of battery.
2) The issue of confidentiality must be assessed with regards to Mr Quick informing the Daily Dirty News about his concerns of Mimi’s drug addictions. It shall be investigated whether there has been a breach in the doctor and patient confidentiality. There must also be an insight as to the remedies available to Mimi if such a breach has occurred.
Confidentiality is seen as a ‘mutual trust’ between the doctor and their patient, not only on issues of a medical importance, but also information of a sensitive nature which, a patient may disclose. The information obtained by doctors should be kept secret for ‘moral’ reasons. There is also a ‘legal’ obligation to protect sensitive information, as well as a ‘professional’ obligation to hold data strictly confidential.
It can be seen that the ‘moral’ issue of confidentiality can be traced back to Hippocratic Oath which saw the relationship between Doctor and Patient as ‘sacred’ and something which must not be broken. A modern example is seen in the Declaration of Geneva this contains the oath that is taken upon admittance into a medical profession which states that: ‘I will respect the secrets which are confided in me, even after the patient has died.’ This indicates that a patient’s confidential information is to remain confident and cannot be disclosed without lawful reasoning.
There is also seen to be a ‘legal duty’ with regards to confidential information being distributed. However, the case of Kaye v Robertson established that ‘[i]n English law there was no right to privacy and accordingly there was no right of action for breach of a person’s privacy.’ Seemingly, if this was the case it would be unfair and would mean that no personal information would remain confidential.
A further factor which must be taken into account with regards to confidentiality is that of the General Medical Council’s guidance. It can be argued that ‘Patients have a right to expect that information about them will be held in confidence by their doctors.’ The doctor must adhere to this practice of keeping such information confident within reason. It is also vital that any disclosure of information must be confirmed with the patient and agreed upon.
The issue of ‘privacy’ was addressed in the case of Campbell v Mirror Group Newspapers PLC, a case which saw an infringement upon ones human rights. In this case Article 8 of a ‘right to respect for her private and family life’ of the ECHR was breached. Therefore, meaning that the media’s interference was a disregard of the privacy of the claimant who was awarded damages for the publication pictures of her in the newspaper. Arguably Mimi may be entitled to similar compensation.
There may be justification for the disclosure of information, may arise where there is an indication ‘that the patient has consented, or that it is in the public interest to disclose’ which is recognised at common law. This was seen in the case of AG v Guardian Newspapers (No2) a case in which Lord Goff expressed his opinion:‘….confidences should be preserved and protected by the law nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure.
The case of Hunter v Mann supports the idea that ‘a doctor is under a duty not to disclose, without the consent of his patient, information which he … has gained in his professional capacity…’ hence this is seen as the ‘mutual trust’ between a doctor and patient.
Mimi’s argument of a breach of Article 8 of the ECHR with regards to ‘right to respect for her private and family life’ can too be supported by the case of Z v Finland where it looked at the importance of Article 8 and stated that: “without such protection those in need of medical assistance may be deterred from revealing information of a personal and intimate nature…” consequently people would be reluctant to entrust their Doctor with their personal information.
Daily Dirty News, may have a defence under the ‘freedom of press’ which was discussed in the case of X v Y a case which was against this concept and Rose J expressed that: “… it is not for any individual to take it upon himself … to breach that confidence whether induced by a journalist or otherwise.” Consequently there is a breach in distributing information about Mimi’s medical treatment. They may argue Article 10 of the ECHR with regards to a ‘freedom of expression.’
Mimi could possibly apply for an injunction against the newspaper however as the information is already printed this would not be of any benefit. She could perhaps therefore, apply for an ‘interim injunction’ to stop any further publication of the stories.
Subsequently, Mimi may have an action under S.13 of the Data Protection Act this would be for ‘distress.’ However, the case of Cornelius v De Taranto suggests that Mimi may have a claim if she can satisfy that she has been subject to a loss ‘financially.’ However, arguably if the newspaper company can prove that they have taken care with regards to the publication she may not have a claim.
In conclusion, Mimi, will be entitled to compensation for the breach of confidence that has occurred. She may also have a claim against the newspaper as they have gone and printed the story without her signing a waiver to give them permission to do so she may have a possible claim for slander.
3) There are signs of medical malpractice with regards to the treatment suggested to Mimi which, has resulted in unwanted side affects contributing to her poor health. It must be considered whether Mr quick will be liable for the poor treatment and whether Mimi will have any possible remedies available to her.
The term medical malpractice can be described as ‘any unjustified act or failure to act upon the part of a doctor or other health care worker which results in harm to the patient.’ There is an assumption that if a medical practitioner’s actions are seen to cause the resulting harm, then this could lead to action in negligence.
It must be established whether Mimi has an action in contract against the hospital. If she is a private patient there could be an actionable remedy. This was recognised in the case of Thake v Maurice where it was held that a claim for ‘clinical negligence’ may suffice rather than in contract as there was a ‘breach of duty’ due to unsatisfactory warnings given.
However, if she is an NHS patient, there is no possible cause in action in contract as there is deemed to be ‘no contract between patients and the health care profession.’ This was seen in the case of Appleby v Sleep which established that ‘no consideration in return for the services they receive’ meaning there is no consideration on the patient’s behalf to suffice a contractual relationship.
There is a possibility that Mimi may have a strong cause for action against Mr Quick, she may opt to take an action against him individually. However, she may decide to take an action against the hospital under ‘vicarious liability’ as this may be the better option for a more realistic compensation package.
It was argued in the case of Cassidy v Ministry of health by Lord Denning that: “… if their staff is negligent in giving the treatment, they are just as liable for that negligence…” Consequently the hospital shall be burdened with the negligence caused by Mr Quick.
In order for her claim to suffice in negligence, she must satisfy three factors which will look at the issue that ‘there was a duty of care owed to her’, that this ‘duty was breached’ in her treatment as well as proving issues of causation with regards to the treatment caused her substantial injuries to her vocal chords.
The case of Caparo Industries plc v Dickman developed three requirements in order to satisfy the existence of a duty: ‘(a) the foreseeability of damage from an act or omission, (b) a sufficient relationship of proximity between the parties and (c) whether it would be just, fair and reasonable for the existence of such a duty.’ Therefore, it must be established whether it is reasonable to impose a duty upon Mr Quick for the resulting injuries.
Arguably a ‘duty of care’ exists between a doctor and his patient. Thus Mr quick owes a duty to Mimi whilst she is under his treatment. This point can be illustrated by the case of Barnett v Chelsea and Kensington Hospital Management Committee
The focus must then turn to whether there has been a ‘breach of duty’ of the standard of care. With regards to medical treatment, the standard of care is compared with individuals that share the same ‘skill and expertise’ as their profession. This was established in the case of Bolam which argues that: ‘A man need not possess the highest skill’ therefore a doctor need not be advanced in his understanding, but his act must be in line with his profession.
Furthermore in the case of Sidaway v Governors of Bethlem Royal Hospital Lord Scarman stated that: “… a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion…” Mr Quick actions may not be regarded as negligent if it can be established that his colleagues would have followed the same procedure.
Arguably with regards to the prescribed medication, there was perhaps an ‘error of judgement’ on Mr Quick’s behalf. The case of Whitehouse v Jordan the House of Lords held that:
‘The test is the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon fails to measure up to that standard in any respect he has been negligent and shall be so adjudged’.
Therefore if it is proven that Mr Quick’s that no other doctor would have prescribed the same treatment, he would be held negligent.
Where there is a departure from approved practices, it is up to the claimant to prove this factor as illustrated in Clark v Maclennan where it was held that: “ [i]t is not enough for him to say as to his decision simply that it was based on clinical judgement.” Therefore Mr Quick may argument may not be sufficient. However, it may be argued that Mimi must prove that there is a ‘breach of duty’ and that due to this her vocal chords have suffered damaged.
However, an opposing argument can be seen in the case of Simms v Simms and Another that: “…doctors should not be afraid to try new treatments when existing ones are not working… such a constraint would inhibit the development of better treatments …” Mr quick may argue that he is helping to improve medical research by testing the medication.
A further issue of importance is that the drug prescribed is not widely used in treatments. The case of Crawford v Board of Governors of Charing Cross Hospital insisted that there was no breach where the treatment ‘had been subject to an isolated report in The Lancet. Nonetheless the doctor should keep abreast of most significant developments in his field.’ Thus, Mr Quick should have been more cautious before letting Mimi use the drug as part of her treatment.
Finally, the issue of causation must be proven that ‘but for’ the treatment suggested, Mimi would not have suffered such injuries. The case of Cork v Kirby Maclean Ltd illustrates the point that if the outcome would have occurred even though Mr quick had contributed to it, he will not be liable. However it can be argued that ‘but for’ Mr Quick’s recommendation of the drug, Mimi, would not have suffered extensive damage to her vocal chords.
The legal causation element must also be satisfied for a claim to suffice. This looks at the ‘remoteness of damage’ as derived from the case of The Wagon Mound (No 1) with regards to the treatment. Therefore, if it can be established that it was foreseeable that the treatment would lead to such adverse affects, then there will be liability. Arguably one may consider that with new treatments come potential risks that Mr Quick may have anticipated.
In conclusion, it can be argued that Mimi may possibly receive damages for a ‘loss of amenity’ with regards to the permanent injury to her vocal chords as this would fall into the category of ‘injuries to the senses.’ Mimi may opt to pursue damages in relation to the ‘defective medicine’ however, if she cannot prove this factor, it is unlikely that she will succeed.
Stauch.M, Wheat. K, Text, Cases & Materials on Medical Law (3rd edn, Routledge & Cavendish, 2006)
Medical Law Text, Cases and Materials : Jackson.E , (1st edn, Oxford University Press 2006)
Electronic Sources: Websites
http://www.lexisnexis.com/uk/legal/search/runRemoteLink.do?service=citation&langcountry=GB&risb=21_T6283093173&A=0.8985426720061567&linkInfo=F%23GB%23FCR%23year%252004%25page%25553%25vol%251%25sel2%251%25sel1%252004%25&bct=A Accessed on (10/4/09)
http://www.mma.org.my/Portals/0/Declaration%20of%20Geneva.pdf Accessed on (5/07/09)
http://www.lexisnexis.com/uk/legal/results/docview/nonSearchDocument.do?docLinkInd=true&risb=21_T6275122414&format=GNBFULL&sort=JUDGMENT-DATE,D,H,$PSEUDOLOSK,A,H&startDocNo=1&resultsUrlKey=29_T6275122420&cisb=22_T6275122419&treeMax=true&treeWidth=0&bct=A&csi=274676&docNo=1 Accessed on (9/4/09)
http://www.gmc-uk.org/guidance/current/library/confidentiality.asp#1 Accessed on (25/04/09)
Lecture notes (wolf)
Lecture Slides (wolf)
Cite This Essay
To export a reference to this article please select a referencing style below: