law and medicine Summative essay question 5 2024

Consent is a crucial legal issue within the field of medicine. When obtaining a patient’s consent, this must be accompanied with sufficient preoperative disclosure in order to legitimise medical intervention. Moreover, it is necessary to allow a patient to make a meaningful choice, ultimately promoting patient autonomy. The issue however relates to how much preoperative information a patient should be provided to enable the consent given to be sufficiently informed and therefore legally valid. Canterbury v Spence illuminated this issue. An interpretation of the judgement is that if insufficient information accompanies consent, this is comparable to no consent entirely, rendering it an empty gesture. The resultant effect is that remedial legal actions open up to the patient. An appealing option for the patient to pursue is battery. This tort provides a remedy for unlawful touching and protects the patient against the invasion of bodily integrity; thus placing greater emphasis on autonomy. It is advantageous as it is actionable per se, and there is no question as to standards of medical judgements. However, this avenue has been curtailed by the likes of Chatterson v Gurson. It was held that once a patient is informed in broad terms about the nature of the procedure and gives their consent, the tort of battery is restricted. Such a view was adopted by the English courts as they did not want to discourage medical professionals from acting in their judgment nor willingly expose them to tortious action. To do so may imply medical professionals have undertaken deliberate and hostile actions. The avenue of battery was therefore limited to protect medical professionals. Cases of alleged inadequate preoperative disclosure were redirected as a negligence action. Historically, patients have had difficulty succeeding in these claims as they must deal with questions concerning breaches of causation and standards of care. Uncertainties arose as to what test is needed to determine the adequate duty a doctor has to disclose preoperative information. Responsibility for this unpredictability arose in Sidaway v Bethlem Royal Hospital. The case involved an allegation that the consultant failed to disclose the risk of spinal cord damage. Confusion was created as there was no consistent line of reasoning throughout the judgement. Lord Scarman adopted a prudent patient standard as illustrated in Canterbury v Spence. In contrast, Lord Diplock took a narrow perspective and failed to consider why a patient required information to make an informed choice. The key ratio was provided by Lord Bridge, who predominantly found merit in applying the Bolam standard, unless there was a substantial risk of grave and adverse consequences. This left a difficulty in considering what is meant by a ‘substantial risk’. The law was left uncertain as to whether it was based upon percentage rate occurrence, or on the severity of consequences. Sidaway gave little guidance on this and thus English law was left in this state for a considerable time. Incremental developments arose from cases, signifying an increase in the importance of patient autonomy and an unease with judges as to the suggestions left following Sidaway. A step forward stemmed from Pearce v United Bristol NHS Health Trust, a decision that inserted terminology of the reasonable patient where it had not previously. This was followed by Birch v UCLH NHS Trust that suggested an obligation to inform the patient of alternative procedures, and Chester v Afshar that altered the legal rules to give effect to autonomy, recognising it required greater attention. The societal understanding of the doctor-patient relationship also changed and developments emanated within the medical field. Prior to Sidaway was the ingrained paternalistic culture that the ‘doctor knows best’ and patients unquestioningly handed themselves over to the expert, which Professor Jones attributes to the imbalance of power between the parties. To reflect the change from this perspective, the GMC articulated elaborate standards of informed consent, and thus the medical field advanced beyond any standard that the law required. This did however, lead to a discrepancy. Montgomery v Lanarkshire Health Board took the opportunity to change the test provided from Sidaway and consequently provided a key judgement that considered material risk. Itasked whether a reasonable patient would consider the risk to be material, an objective lens; and whether the particular patient would consider the risk to be material also. If this was the case, information had to be disclosed. The introduction of a subjective element, looking at the perspective of the individual patient and their circumstance, refocused the emphasis of the doctor-patient relationship. Patients