Medical negligence under Negligence and Strict Liability the modern approach by the courts, Assignments of Civil Law

Download Medical negligence under Negligence and Strict Liability the modern approach by the courts and more Assignments Civil Law in PDF only on Docsity! QUESTION: “The law on consent has progressed from doctor focused to patient focused. The practice of medicine has moved significantly away from the idea of the paternalistic doctor who tells their patient what to do, even if this was thought to be in the patient’s best interests. A patient is autonomous and should be supported to make decisions about their own health and to take ownership of the fact that sometimes success is uncertain and complications can occur despite the best treatment.” Discuss the accuracy of this statement in line with the significance of the findings in the Montgomery v Lanarkshire Health Board [2015] UKSC 11 and the development of the law relating to professional negligence. TABLE OF CASES Blyth v Birmingham Waterworks [1856] EH Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bolitho v City and Hackney Health Authority [1996] 4 All ER 771 Chester v Afshar [2004] 3 WLR 937 Donoghue v Stevenson [1932] AC 145 Lanphier v Phipos (1838) 8 C & P 475 Montgomery v Lanarkshire Health Board [2015] UKSC 11 Mwanachi Services Station & Anor v Minga (1973) EA 305 Sarah Watsemwa & Anor v Attorney General H.C.C.S No. 675 of 2006 Sidaway v Bethlem Hospital Governors [1985] 1 AII ER 643 Spencer v Hillingdon NHS Trust [2015] EWHC 1058 The law on consent has immensely developed with huge emphasis being on a patient’s prior consent to any medical treatment going to be administrated unlike before where doctors had to treat patients without their consent/approval. Negligence is the existence of a duty of care which is breached by the defendant and causes damage to the claimant. It was also defined as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or and reasonable man would not do.'The foundation of negligence is the case of Donoghue v Stevenson wherein the Neighbour principle was established” and was seconded in Mwanachi Services Station & Anor v Minga.’ Negligence is divided into product liability and professional negligence which is the basis of this essay. Professional negligence can be defined as a situation where a person who possess a skill or art in particular field breaches his/her duty of care hence causing injury to the claimant which entails medical negligence. The ingredients to prove medical negligence are that there should be a duty of care owed breach of which a damage is suffered by the person to whom the duty was owed. The standard of care in * Blyth v Birmingham Waterworks (1856) 11. Negligence basically means acting without reasonable care hence causing damage to the claimant. ? Donoghue v Stevenson [1932] AC 562 the Neighbour principle means that a person must take reasonable care to avoid actions which when reasonably foreseen may injury his/her neighbour. * Mwanachi Services Station & Anor v Minga (1973) EA 305, the Court of Appeal for East Africa stated that one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one’s neighbour. Health Board, the Court in determination of the issue found that it was essential that a patient is informed of the risks involved in a proposed treatment and is left to decide on whether to take it or not. According to this case, consent begins with the disclosure of material risks in the Bolam test what was material was a matter of professional judgement but the Montgomery case adopted the Lord Scarman’s definition of material risk in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital which was what a reasonable person in the patient’s position would attach significance to. Therefore, the test of materiality was patient focused or centered unlike what was in the Bolam test. The case emphasized that patients play an active role in making informed decisions concerning issues with their treatment. It is essential for patients to be told of the side effects of treatment so that they go for its well aware of the benefits, risks or choose any other procedure if available in order for them to make decisions about their health. In addition to, it imposed a duty on doctors to ensure that patients are aware of any risks in proposed treatment and also provide medical advice to patients on any available treatments or suitable alternatives.’ This is because it is difficult to consider one medical procedure without looking at the rest therefore it is important that sufficient information is given for a patient to be able to make an informed decision. This case emphasized the concept of a patient being autonomous and ought to make decisions concerning their own health, hence doctors could not be liable where the procedure did not yield successful results since the patient would have consented to it. This is because patients have rights which need to be acknowledged and respected, they have the freedom to decide what shall not be done to their body therefore consent prior to medical treatment and their participation and involvement in decision making is crucial because the purpose of treatment is to address the individual patient’s needs. The Montgomery case highlighted a major shift from the old law where a patient would solely depend on a doctor’s decision but the ruling in Montgomery gave appropriate recognition of patients as decision makers in cases involving their treatment. The decision in the case of Montgomery was used in Spencer v Hillingdon NHS Trust" the patient had bilateral pulmonary emboli after a hernia operation. He did not seek treatment immediately because he had not been advised of the risk of deep vein thrombosis or pulmonary embolism or of symptoms that 8 Montgomery v Lanarkshire Health Board [2015] UKSC 11, Lord Kerr & Reed were of the view that a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and any reasonable alternative or variant treatments. *Spencer v Hillingdon NHS Trust [2015] EWHC 1058, the court while following the decision in Montgomery held the failure to inform a patient of the subsequent risks of a proposed treatment was a breach of duty to care. might indicate these. The judge considered the Montgomery ruling and found that failure to inform the patient was a breach of the duty of care. The exceptions to the law on consent are therapeutic privilege, emergency and situations where consent has already been given." In conclusion, the law on consent has immensely developed where a patient’s prior consent to any medical treatment is paramount and crucial where it is not given it will amount to breach of duty to care which may give rise to a claim under medical negligence. BIBILOGRAPHY Books Eliott C & Quinn F, Tort Law qi edn, Pearson) Murphy J, Streets on Torts (12" edn, Oxford University Press) Turner C & Hodge S, Unlocking Torts (2! edn) +5 These exceptions to the law on consent were discussed in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 to include instances where a patient does not wish to be informed of the risks, in cases of emergency and where there is therapeutic exception.