Informed consent Flashcards
why is consent important?
it prevents the doctor from being
sued for trespass to the person.
Does the patient have enough information to make an informed decision
Chatterson Gerson
As long as the patient is informed in broad terms of the nature and purpose of the procedure you use negligence rather than trespass. To sue for trespass there needs to be an admin error or fraud.
What are the tests for material risks
Patient-friendly test: the doctor must disclose all material risks and all information that the particular patient would want to know
Reasonable doctor test: the doctor must disclose all material risks and all other information that the reasonable doctors would disclose.
What are the facts of Sidway
non- therapeutic surgery. she was not informed of the 1-2% risk of paralysis - which materialised. She argued that if she had known she would have not had the operaton.
What was Lord Scarmans judgement of Sidaway
BOLAM - the starting point should be patients autonomy. A risk is material if the reasonable patient would want to be told of. There is no reason why doctors should decide how much information patients recieve .
What is lord Bridge and Templemans judgement of Sidaway?
They use Bolam, the amount of information awarded to a patient is a matter of clinical judgement. In some situations, the disclosure of risks is so obviously necessary for the patient to make an informed choice.
What is Lord dip locks judgment of Sidway ?
- More educated persons should be given more information as they are better able to weigh up the pros and cons.
- there is no difference in the way doctors operate when it comes to diagnosis and treatment. so, therefore, the provision of treatment should not be different.
- we use Bolam for treatment and diagnosis, therefore we should use it for the provision of treatment.
What is English law with regards to informed consent
The doctor must disclose all material risks and other information that the reasonable person in the patient’s position would want to know, this is subject to a doctors therapeutic privilege.
What is therapeutic privilege?
The idea that the doctor can withhold the mention of a risk or more than one risk if ti may cause psychological detriment.
Gold v Haringey Health authority
sterilisation case which reversed itself - Mrs Gold became pregnant, she sued because she wasn’t informed about the failure and she wasn’t told about alternatives.
COA : favoured lord Diplock’s judgement in Sidway - the reasonable doctor approach.
Blyth and Bloomsbury Health Authority
A woman asked questions about the drug she was given and wasn’t given proper answers.
Lord Justice Neil: The amount of Information given depends on the circumstance and this is governed by the Bolam test.
PRO PATIENT FUTURE:
Smith v Tunbridge Wells Authority
Mr smith had surgery to have his pelvis repositioned but he was left with a permabnent baldder malfuncton and wasleft impotent. The judge fund for the plantiff even though other doctors said they wouldnt have warned of the risk.
- Male judge - impotency may be ableto relate to
Rogers WHITAKER (Australian case)
Patiennt wasblind in one eye - offered surgery to try to improve vision and apperance of the eye. Wasnt told about the risk that the other eye might be damagaged as a result - the risk materialised.
The said that teh urpose of the law is patient autoomy - so Bolam doesnt fit. They came up with a two part test. which the claimant has to satisy one part. Marie whitaker satifsfied one aspect and won.
what was the two part test in rogers v whitaker
A risk is material if a reasonable person in the patients position would attach signifiacne to the risk. Or ifthe medical practioner is or should be reasonably be aware that the particular patient if warned wouldattach significane to the risk.
FIRST CASE AFTER BOLITHO :
Pearce V united Bristol Healthcare NHS Trust
Judgemeent by lord Wolf :
if there is significant risk which would affect the judgmentof a reasonable patent then in the normal course it it the reponsibility of the doctor to inform the patient of the significant risk. if rhe information isneed so that thepatient can determnie for him or hisself as to waht cousre he should adopt.
Followed lord Scarmans judgement in Sidway
