Health Law Lecture 2 - Laws Affecting Medical Practice Flashcards
What type of legal relationship do doctor-patient relationships have?
Contractual
What are the elements of a contract?
- Needs to be offer, acceptance and consideration (something of value given)
You also need intention to enter into a contract and capacity to do so (child cannot) - A contract must have terms:
express or implied (implied term in medical practice is that as a patient I will receive REASONABLE CARE) - Remedies for breach:
aim to put the plaintiff in the position if the contract was not breached. Remedies include - damages, injunction, specific performance ,
What is an injunction:
An equitable remedy of a contract which stops a party from doing something.
What torts apply to medical practice?
Assault: Threat causing apprehension of unlawful contact
Battery: Application of force without lawful cause (touching without consent.
False imprisonment: holding someone without their consent
Negligence: Failure to exercise REASONABLE CARE AND SKILL resulting in harm/damage.
*The term assault normally covers both assault and battery these days,
What is the difference for the plaintiff proving a case of negligence vs assault/battery/false impriosonment.
Negligence - need to prove there was harm/damages
Battery/assault/false imprisonment - doesn’t need to be harm to prove.
What are the FOUR elements of consent?
- Competent person
- Consent is given voluntarily - not through coercion or duress
- Consent is informed
Patient understands the nature of the procedure
Patient understands material risks - Consent is specific
Competence - does it need to be proven?
Does it differ for children/adults.
What does common law say about the minimum age at which patients can consent? Which case is relevant?
Difference in assumption betwee Adults and Children
Adults - assumed competent but this can be rebutted (if shown didn’t have capacity at the time e.g. unconscious)
Children - assumed incompetent, but can consent in some cases.
Common law - no minimum age at which a child can consent. The important case here is Gillick vs West Norfolk AHA. It established the doctrine of “The Mature Minor” - Victoria Gillick wanted assurance that the department of health wouldn’t give contraceptive advice to her underage daughters. She took this to court and the court said that children can consent to treatment if they can be assessed to be mature enough to understand fully the treatment that is proposed ie the doctrine of the mature minor. This is a “Gillick competent minor”.
What is a material risk?
Which case made it necessary for doctors to disclose all material risks as part of gaining informed consent?
What test can be used to determine whether a risk is material for a procedure?
It is any risk that is considered to be important to the patient.
Rogers vs Whitaker - Dr Rogers operated on Mrs Whitaker’s bad eye but she developed sympathetic opthalmia in her good eye and was left blind. He was sued for not disclosing this material risk to Mrs Whitaker even though the risk of this complication was very low.
Rogers vs Whitaker test: A risk is material if
- Objective arm: A reasonable person in the patient’s position would attach significance to this risk
- Subjective arm: The doctor is aware/should be aware that THIS particular patient would attach significance to this risk.
What is used to determine whether a person has capacity?
- Can comprehend and retain information about the treatment.
- Can weigh up the information to arrive at a choice.
What are the two purposes of the law of negligence:
- Provide compensation to those that are harmed by negligence
- Set a standard and deter others from acting negligently.
What needs to be shown to prove negligence:
- There was a duty of care
- The standard of care was breached by the defendent
- This breach caused harm/damages to the plaintiff
- The damages are not too ‘remote’
- There are no defences that excuse the breach
Which old case established the concept of duty of care and negligence?
Donoghue v Stevenson (1932)
Ms Donoghue sued the manufacturer of ginger beer when there was a decomposed snail found at the bottom of it. The case wen to the house of lords where Lord Atkin said the following about a duty of care:
“The rule that you are to love your neighbour
becomes in law, you must not injure your
neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must
take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely
to injure your neighbour. Who, then, in law, is my
neighbour? The answer seems to be – persons
who are so closely and directly affected by my act
that I ought reasonably to have them in
contemplation as being so affected when I am
directing my mind to the acts or omissions which
are called in question.”
True or False re: duty of care:
- Treatment does not have to start for therapeutic relationship to exist?
- There can be a duty to attend emergencies:
- There can be a duty by non-medical staff
- There can be a duty to third parties (ie not direct patient)
- True
- Albrighton vs RPA - neurologist referred but didn’t see patient before surgery. Found negligent.
- Wang vs Central Sydney Health Servcie - patient left from triage after presenting for head injury. There was a duty to explain why he should stay - True
Lowns vs Woods - GP didn’t attend to see a kid with a seizure when he was asked. - True
- Medical receptionist who thought a patient wasn’t urgent and booked his clinic for later. - True, but limited to special circumstances. E.g.
Kemp vs Lyell McEwin Health Service - Negligently discharged heart transplant patient who died. Family developed psychiatric illness watching this ordeal.
X and Y vs Pal - doctor negligently didn’t test mother for syphilis and fetus contracted congenital syphilis when born. Fetus has some rights but needs to be born live to exercise them.
In assessing whether the standard of care has been breached (one of the components of proving negligence) what principles can be used?
Bolam Principles - the practitioner is not negligent if he/she acts in accordance with what is accepted as proper by a reasonable body of his or her peers.
Negligence also requires that it is shown that the breach of standard of care CAUSED the harm.
Which rule can be used for this?
“But for rule” considered in Barnett vs Chelsea and Kensington Management Committee. The harm wouldn’t have occurred “but for” the breach of standard.
Casualty officer sent home some night watchmen after then presented with vomiting. One died 5 hours later of arsenic poisoning. However despite there being a breach in the standard of care, it couldn’t be shown that acting reasonably would have changed the outcomes (ie averted the harm).
