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LAW1029 Law Of Torts

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LAW1029 Law Of Torts

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LAW1029 Law Of Torts

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Course Code: LAW1029
University: University Of Glasgow is not sponsored or endorsed by this college or university

Country: United Kingdom

“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 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.” Montgomery v Lanarkshire Health Board.
Following the Supreme Court’s decision in the case of Montgomery to inform patients of ‘material risks’, to what extent is there a true defence of therapeutic privilege for medical practitioners?

A medical practitioner is a person, who is a doctor or practice in a medical field. Cause of his/her expertise in the field, people (patient) does trust him. A medical practitioner is a professional and therefore requires to follow the ethical principles in his/her practice. According to tort law, some person owes a duty of care in respect to others. The relationship of a doctor and a patient comes under the same category. It means a doctor owe a standard of care towards his/her patient. A duty of care refers to a situation where a person is required to act similar to a reasonable person. Health care is a very significant topic to study as it is directly related to the health of a person. The duty of care becomes more crucial when it comes to medical practices. According to the provision of Tort law, a doctor is required to act in the best interest of a patient.
Informed consent is another concept that requires a doctor to take prior consent of a patient before go ahead with any kind of treatment. However, there is some exception of informed consent rules. In the present report, the focus will be made on the requirements of informed consent and the exceptions thereof.
The informed consent is related to ethical practices and consists of many other rules and principles that are described and discussed below. This is to state that all these rules and principles are based on the duty of care that a doctor owes in relation to his/her patients.
The Bolam test 
The test derived from the case of Bolam v Friern Hospital Management Committee. In the decision of this case, the high court judge McNair J provided that a doctor will not be considered guilty of negligence if the same acts in a proper manner and according to accepted practices. The decision of the court was far significant and the same has been used in many of the cases as legal precedent. These cases include some of the important cases such as Sidaway v. Board of Governors of the Bethlem Royal Hospital, Maynard v. West Midlands Regional Health Authority and Whitehouse v. Jordan. In the decision of all these cases, it has been held that doctors do not need to take consent of patient in every case and the matters on which consent is required must be of material nature. The Bolam test made the receiving of damages typical for the victims, however, the same becomes the basis of judgment in most of the cases.
Right of Autonomy
According to this right, a patient is entitled to take the decisions related to his/her health. The subjective right is granted to patients under the law. However, such a right can be proved wrong in those situations where a patient is not capable to take a reasonable decision.
The case of Gillick v West Norfolk & Wisbech Area Health Authority is an important one to study in this area. In this case, the victim, Mrs. Gillick was not a major person. She took an advice in respect to contraceptive from a medical practitioner. At this time she was not even able to give any consent for the physical intercourse. Therefore, to be stated that the right of autonomy cannot be proved positive and beneficial in every case.
Informed Consent
Informed consent can be understood as a process by which a medical practitioner discloses the health-related information to the patient in order to make the patient enable to take proper decision. Informed consent supports the right of autonomy of a patient. A patient can accept or refuse to take further treatments then. The reasoning behind this rule is that a person must be aware of the true circumstances and medical practitioners should not hide anything from the patient. Health care decisions are the most significant one for a person and in such a situation; it becomes the responsibility of a medical practitioner to share the true condition with the patient. However, this is to inform that there is some exception of this general rule i.e. the rule of informed consent. These exceptions are the situations where a medical practitioner can hide the health-related information from the patient and the same are as follow:-

In a situation where a patient himself herself waived the requirement of consent.
Situations of emergency where it is not possible for the medical practitioner to share the information with the patient and no reasonable proxy is there.
A situation where the patient does not have enough capability of reasoning and he/she is not able to understand that what is right and wrong.
In a situation, where a patient designates another person to take decisions on his/her behalf.

The previously mentioned conditions are those where it is not possible for the doctors to share the healthcare related status with a patient and patient does not remain in the capacity to take any decisions. In the circumstances mentioned above, a medical practitioner can take the decision on behalf of the patient.
Many of the cases have happened there that are related to the topic of informed consent and in the decision of those cases; courts have provided different decisions based on the facts and circumstances of individual cases.
The lead case is Montgomery v Lanarkshire Health Board. This case is related to informed consent and the decision given in the case by the supreme court is very important as the same has overruled the earlier decision of house of lords given in the case of Sidaway v. Board of Governors of the Bethlem Royal Hospital. As mentioned earlier that in the case of Sidaway v. Board of Governors of the Bethlem Royal Hospital, Bola test has been applicable, the decision of the case of Montgomery v Lanarkshire Health Board was completely different. Moving towards the facts of the case, this is to say that in the subjective case claimant was a pregnant lady. She was diabetic and under the care of a doctor. The doctor was of aware of the fact that the lady has a 9-10 percent danger of shoulder dystocia but the same has not informed to the patient about the same. The doctor was in thought that the risk was not in claimant’s interest and issue was not material. Later on, the born baby was suffered from severe disabilities cause of shoulder dystocia. The lady, being a claimant asked for the damages from health board because of the negligence of the doctor. The court of the session took the reference of Bolam test and stated that doctor cannot be held liable for negligence and therefore is not liable to pay any damages to the claimant. In the decision of the case, the court of the session provided a reasoning that there was no requirement to informed the claimant about the risk on the part of the doctor as providing such information also, could not bring any other results such as a caesarean birth. 
Now, the Supreme Court considered the case further. This court affirmed the requirement of informed choice of the patient. Lords Reed and Kerr provided that Bolam test cannot be applicable in each case and the same can only be applicable in the school of thoughts. A patient can decide that whether he/she wants a medical information or not and can deny receiving any information of risk. In such a situation doctor does not remain liable to take informed consent of the patient, however, the elimination of such consent is not a subject matter of expertise. It means on the basis of expertise, a doctor cannot decide that whether a healthcare information should be shared with a patient or not. The Supreme Court has overruled the decisions of Sidaway v. Board of Governors of the Bethlem Royal Hospital and denied the applicability of Bolam Test. Court further stated that analysis of law in the case of Sidaway v. Board of Governors of the Bethlem Royal Hospital was not satisfactory as a doctor is no one to decide which information to be share with patients and which are not.
Therapeutic privilege
This is a situation where a medical practitioner can be excused by sharing healthcare information to patients. The privilege is applicable in those situations where disclosing healthcare information can bring some negative impacts to patients and can prove dangerous. For instance, providing any information can lead the issue of suicidal behavior. The rule of Therapeutic privilege says that medical practitioners should not tell the lie to patients but they are also not required to share the whole fact while doing so can bring negative impacts. Therapeutic privilege can be understood as an exception of the general rule of informed consent.
To conclude the issue of informed consent and it is exceptions, this is to be stated that Therapeutic privilege is advancement for the medical practitioners where they can conceal such Information from the patient, and however, the decision given by the Supreme Court in the case of Montgomery limits the use of such privilege as a defense. In the decision of the case, the subjective court clearly stated that a medical practitioner must inform all the material facts to the patient and should not hide anything just based on their expertise. However, this is ethical to hide a fact from the patient for the benefits of the same but by the decision of the supreme court, it seems that medical practitioners cannot use this privilege as a defense in general and they are not advised to conceal healthcare facts from patients as it can lead an issue for them. They can use this defense in very limited and serious cases.
Case Laws 
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112
Maynard v. West Midlands Regional Health Authority[1985] 1 All ER 635
Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871
Whitehouse v. Jordan [1981] 1 All ER 267
Other Resources
Emily Dorotheou, ‘Case Comment: Montgomery v Lanarkshire Health Board [2015] UKSC 11’ <> accessed 04 November 2018
Jessica De Bord, ‘Informed Consent’ accessed 04 November 2018
Joy Wingfield, Patient consent in the UK <> accessed 04 November 2018 Almas Shaikh, ‘Doctor-Patient Relationships: The Distinction Between Contractual and Tortious Liability’ <> accessed 04 November 2018, ‘Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] UKSC 11’ <> accessed 04 November 2018, ‘medical practitioner’<> accessed 04 November 2018, ‘When is a risk material? Examining the impact of Montgomery v Lanarkshire Health Board’ <> accessed 04 November 2018, ‘MAYNARD V WEST MIDLANDS REGIONAL HEALTH AUTHORITY: HL 1985’ <> accessed 04 November 2018
Books and Journals  
Britt L D, Trunkey, D D and Feliciano D V, ‘Acute Care Surgery: Principles and Practice’ (Springer Science & Business Media 2007)
Bryden D, Duty of care and medical negligence (2011) Continuing Education in Anaesthesia Critical Care & Pain 
Edwin A., K., Don’t Lie but Don’t Tell the Whole Truth: The Therapeutic Privilege – Is it Ever Justified? (2008) Ghana medical journal 
Law J, A Dictionary of Law (OUP Oxford, 2015)
Levy N, ‘Forced to be free? Increasing patient autonomy by constraining it’ (2014) Journal of medical ethics 
Phillips J S and Erskine S, ‘Landmark Papers in Otolaryngology’ (Oxford University Press 2018)
Werry J S and. Aman M G, ‘Practitioner’s Guide to Psychoactive Drugs for Children and Adolescents’ (Springer Science & Business Media 2013)

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