Negligence and strict liability Coursework-PDF, Lecture notes of Law of Torts

Download Negligence and strict liability Coursework-PDF and more Lecture notes Law of Torts in PDF only on Docsity! NAME: REG. NUMBER: FACULTY: COURSE: COURSE UNIT: LECTURER: TUTOR: DATE: Question. UGANDA CHRISTIAN UNIVERSITY KAMPALA CAMPUS SSENFUKA SHAFIK. KS18B11/605 LAW LLB2 NEGLIGENCE AND STRICT LIABILITY KABAHIZI EDGAR KYALIMPA JUDY March 18, 2021 “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 Contents Table of Cases 1. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Montgomery v Lanarkshire Health Board [2015] UKSC 11 Pearce [1999] PIQR P53 Rogers v Whitaker 175 CLR 479 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 Thefaut v Johnston [2017] EWHC 497 D west YN shoulder caught behind the supra pubic bone during birth). On appeal by the claimant, the House of Lords held: Mrs. Montgomery was told that she was having a larger than usual baby. But she was not told about the risks of her experiencing mechanical problems during labor. In particular she was not told about the risk of shoulder dystocia. It is agreed that that risk was 9-10% in the case of diabetic mothers. Unsurprisingly, Dr McLellan accepted that this was a high risk. But, despite the risk, she said that her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia. She explained that this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, most women will actually say I’d rather have a caesarean section. She went on to say: "if you were to mention shoulder dystocia to every diabetic patient, if you were to mention to any mother who faces labor that there is a very small risk of the baby dying in labor, then everyone would ask for a caesarean section, and it's not in the maternal interests for women to have caesarean sections. The Supreme Court, at paragraph 76, referred to changes in the way in which healthcare services are provided and to the accessibility of information and concluded: The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway’ by Lord Scarman, and by Lord Woolf MR in Pearce’, subject to the refinement made by the High Court of Australia in Rogers v Whitaker’as discussed. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. > supra © Pearce [1999] PIQR P53 7 Rogers v Whitaker’ 175 CLR 479 The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions. Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient. Secondly, the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form. Thirdly, it is important that the therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests. The Supreme Court thereby removed the issue of what a patient should be told from the realm of the professional to that of the Court. However, in important respects the test for breach remains professional-centered. In particular, the test for what a patient should be told will have to be established by medical evidence, i.e. what risks there are, albeit that the test of whether the individual patient should be informed of the risk, whether it is material in the circumstances, is thereafter a matter for the Court. The Court adopts the typical objective/subjective test to be found 6 in other areas, for example; limitation, i.e. a reasonable person in the patient’s position. This is presumably on the basis that this patient may be unreasonable so the Court must decide how a reasonable person in her position would act. Subsequent cases have expanded upon the process of consent. For example, in Thefaut v Johnston® Green J observed that: It is accepted that the simple fact that Mrs. Thefaut signed the hospital consent form is not to be taken as an indication of acceptance of risk. In my view the document is of no real significance on the present facts. (It would have greater significance in emergency cases involving no prior contact between patient and clinician). Green J concluded (at paragraph 79) that: a reasonable patient with the same symptoms as Mrs. Thefaut, being fully and properly advised, would have either rejected the option of surgery altogether or at least deferred the option until she had received a second opinion”. And accordingly found for the claimant. Causation was therefore made out. ® Thefaut v Johnston [2017] EWHC 497