Informed consent: problem question

Question 1

No Consent = BATTERY
- Collins v Wilcock

Definition of Consent:

• Chatterson
• Garrett

Answer 1

Collins v Wilcock:
Battery is actionable per se (intention needed)
- unlawful touching without consent

Consent:
-Chattterson:
‘informed in broad terms of nature of procedure’
- facts: 2 operations, second not explained = loss of sensation in left leg = no explanation in broad terms
Garrett:
consent must be real

Question 2

3 ingredient for negligent claim

DOC
- Bolam/ sidway

Answer 2

there is has to be a DOC, breach and causation of injury

DOC: under bolam or any other med case

• Drs owe a DOC to their patients to give them enough info to allow them to consent or reject treatment.
• DOC in all diagnosis advice and treatment

Question 3

BREACH OF DUTY

Montgomery .

Answer 3

Facts:

• C preg, had diabetes and small stature
• not told of the 9-10% risk that baby would not be able to pass through
• D argued it wasn’t in her best interest neither to have a C-section
• Risk materialised and baby was born with disabilities.

CA and HL held:
- P must be informed of any material risk and alternative treatment available - includes risk 10% above
Test for Materiality:
- anything D knows P will attach significance to or ought to have know any in P’s position will attach significance to.
- look at the dialogue between D and P

Question 4

BREACH OF DUTY 
Duce
A v Kent 
Birch 
Pearce

Answer 4

Duce: Facts

• D was unaware of risk of pain associated with treatment neither did the med community.
  held: if D did not know or ought to have known = no liability

A v Kent: facts
- small theoretical risks do not count

Birch: inform P of all risk and all alternative treatment so he can consent to one treatment over another.

Pearce: Significant risks

Question 5

BREACH OF DUTY - Paitent’s understanding
Smith v Turnbridge
Smith v Salford
Al Hamwi

Answer 5

Smith v Turnbridge:
- D has duty to use language P will understand - simple terms

Smith v Salford:
- Deal with P in a way that will register with them if they have a particular condition.

Al Hamwi:
- put measures in place to ensure Ps understanding but P doesn’t have to understand.

Question 6

DEFENCE - THERAPUTIC EXCEPTION

- Montgomery

Answer 6

where informing P of risk that would be detrimental to Ps health would not attract liability - not to be abused.

Question 7

CAUSATION

Smith v Barking

Answer 7

material risk P was not warned of has materialised to an actionable damage - if warned P would have declined.

But for test:
Smith: but for failure to warn P would not have undergone the treatment - burden of proof is on P
- they would have had the treatment at a later date.

Question 8

CAUSATION - Hesitant Patient

• Chester
• Corria
• Jones

Answer 8

Chester: Facts
- not warned of a 1-2% risk of spinal injury = it materialised
- P claimed if she was told she would have the OP at a later date after getting a second opinion.
succeeded

Corria: Facts:

• 3 part OP on hop
• consented to a 2 part OP which she was told of
• 3 part not told of but didn’t do the operation = risk from it materialised
• P claimed if she knew it was a 3 part treatment she wouldn’t have consented

held: liability is for negligent treatment not negligent advice
- cant warn against risk of OP that you wasn’t going to perform.

Jones: not informing P of surgeon change = negligent as it denies P of autonomy.

Question 9

THIRD PARTY LIABILITY:

- West Brom v El-safty

Answer 9

Drs DOC does not extend to third parties.