First Class Informed Consent and Medical Malpractice notes
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Course
Medical Law and Ethics I (LAW051)
Institution
The University Of Liverpool (UoL)
Book
Medical Law
This 24-page document contains notes of a First Class standard covering the entire Informed Consent topic and the way it links with Medical Malpractice, including the history of informed consent leading up to the current position in Montgomery; causation and remoteness of damage; and defences. All ...
Informed consent looks to the duty of the doctor to disclose information to the patient with respect to
the procedure to be carried out and the risks of said treatment.
Why inform patients?
o Doctors can avoid legal action
o Respecting patient autonomy
o Enhance healthcare
Why not inform patients?
o The 'time' factor - the duty to inform patients as to all aspects of their treatment and procedures may
interrupt crucial activities
o Too much information can make people anxious
o Medical information is sometimes complex
o Patients do not want to be informed
BATTERY
The intentional and direct application of unlawful force constitutes the tort of battery (Collins v Wilcock,
per Lord Justice Goff). A battery requires:
• An intention to commit the act - it is irrelevant whether the consequences were intended; and
• A direct application of force - there must be some physical touching - this is often not the case
in information disclosure
The tort is actionable per say: the claimant does not have to prove special damage. D is liable for all
consequences of the touching, unlike in negligence where D is only liable for foreseeable damage. This
protects a person’s right to self-determination.
The consent of a competent patient provides a defence.
How much information is enough to render the consent valid and real for the purpose of a battery?
Chatterton v Gerson [1981] –
‘Once the patient is informed in broad terms of the nature of the procedure which is intended, and
gives her consent, that consent is real', per Justice Bristow.
Thus, the doctor is merely required to inform P generally about the treatment. A failure to discuss or
explain the risks of the proposed treatment (or alternatives to that treatment) goes to the doctor's duty
of care in negligence, not battery.
Broadly speaking, there are three types of battery case that can be identifiable from the case law:
Doctor's mistaken belief as to a valid consent
The doctor may reasonably believe that he has a valid consent but, through some error, the procedure
will constitute a battery even though it is the result of a mistake.
, Chatterton v Gerson [as above] –
Facts: The defendants operated on the patient’s leg twice. The first operation was consented to. The
second operation that the doctor carried out was performed without having explained to the patient
why he was operating and what the operation involved. The defendant did this because he assumed
that the patient’s consent to the first operation carried on to the second operation. The second
operation left the patient without sensation in the leg.
Held: D had not informed in patient in broad terms of what was happening on the second occasion.
Schweizer v Central Hospital (1974) –
Facts: The patient had consented to an operation on his foot. There was a mix-up and an operation was
carried out on his spine.
Held: There was no valid consent.
Fraud and misrepresentation
The fraud and misrepresentation must relate to the nature of the procedure. These are extreme cases.
R v Richardson [1999] –
Facts: A dentist was suspended but continued to practice. Her patients wrongly assumed that she was
entitled to practice.
Held: There was no battery. The fraud and misrepresentation was to the dentist's identity, not the
nature of the procedure.
Compare with: Appleton v Garrett [1996] –
Facts: A dentist performed wholly unnecessary surgery for financial gain.
Held: There was a battery. The fraud and misrepresentation related to the nature of the procedure, in
that it was being performed for non-medical reasons.
Chatterton v Gerson [as above] –
Held: "if information is withheld in bad faith, the consent will be vitiated by fraud."
Re T (adult: refusal of medical treatment) [1992] –
Held: "…misinforming a patient, whether or not innocently, and the withholding of information which
is expressly or impliedly sought by the patient may well vitiate either a consent or a refusal."
R v Flattery (1877) –
Held: Consent to sexual intercourse in the belief that the procedure was a surgical operation was not a
valid consent.
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