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Medical Law and Negligence

What is the correct treatment?

(a) Consent

Generally, whilst an able patient should consent to their treatment, where they are unable to, the courts may deem treatment a necessity.

Moreover, the need has arisen to check whether there is a 'advanced directive' giving effect to a patient's beliefs, in keeping with Malette v. Schulman (1990) 67 DLR (4th) 321, so as to refuse consent.

Therefore, where consent is not sought where it is required, a criminal offence may arise, illustrated by R v. Brown [1994] 1 AC 212.

But there is also a need to provide a capable patient with all relevant information so they can make an informed choice, according to Chester v. Afshar [2005] 1 AC 134 (HL), regarding the extension of legal causation.

This is because, in cases of negligence, it will often be proved that patient would not have consented to surgery had they known about the risk that caused the injury, supported by Pearce v. United Bristol Healthcare NHS Trust [1999] 48 BMLR 118, leading to claims for substantial damages.

(b) A patient's 'Best Interests'

Therefore, a patient's 'best interests' are paramount, in keeping with Lord Justice Wall's view in Wyatt v. Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181 at paragraph 112 because a patient is owed a duty of care.

Doctors generally rely upon the Bolam principle, in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, so treatment will be regarded as being in a patient's 'best interests' so long as a responsible body of medical opinion favours it.

(c) Where do the problems lie?

Circumstances that led to an initial decision can change over time (see, for example, Portsmouth NHS Trust v. Wyatt & Wyatt, Southampton NHS Trust Intervening [2004] EWHC 2247 (Fam) and Wyatt v. Portsmouth NHS Trust [2005] EWCA Civ 1181).


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