Module 2 - Health Law

Question 1

What are the three principal areas of civil law (tort law) in which patients may sue a doctor for compensation for medical injuries:

Answer 1

1. Tresspass (assault and battery)
2. Negligence
3. Breach of contract

Question 2

The tort of trespass to the person, sometimes called ____ and more coloquially ______ protects a person’s right to _____________

Answer 2

Battery
Assault
Bodily Inviolability - the right not to be touched without consent or other lawful authority.

Question 3

The technical difference between battery and assault is

Answer 3

Battery is unauthorised touching whereas assault is an act causing apprehension of battery.

However, the nowadays the term assault is commonly used to describe both assault and battery.

Question 4

What was the Rogers vs Whitaker (1992) case?

Answer 4

Maree Lynette Whitaker, who had for many years been almost totally blind in her right eye, consulted Christopher Rogers, an ophthalmic surgeon, who advised her that an
operation on the eye would not only improve its appearance but would probably restore significant sight to it. Whitaker agreed to undergo surgery. After the operation there was no improvement to the right eye, and Whitaker developed inflammation in the left eye which led to loss of sight in that eye. She sued Rogers in the Supreme Court of New South Wales for damages for negligence. Campbell J found Rogers liable in that he had failed to warn Whitaker that, as a result of the surgery, she might develop a condition known as sympathetic ophthalmia in her left eye. He awarded damages of $808,564.38

Question 5

What was the implications for Rogers vs Whitaker on patients suing for the tort of trespass vs tort of negligence?

Answer 5

After RvW patients could only sue for trespass if they had not been ‘informed in broad terms of the nature of the procedure which was intended’.

They could not sue for not being adequately informed of the risks of a procedure - this must be claimed as a negligence tort.

e.g. goes in for appendectomy but is sterilised –> can sue for trespass

goes in for breast reduction, not told about incision around areola and losing sensation to nipples –> must sue for negligence.

Question 6

What was the implications for for Rogers vs Whitaker on the information that was required to be provided to a patient by a doctor?

Answer 6

The court said that it is a part of a doctor’s duty of care to inform patients about ‘material risks’ of a procedure - material risks are those that if warned of the risk, the patient would be likely to attach significance to.

The doctor is responsible for deciding what would be a material risk.

Question 7

The tort of negiligence and the tort of contract give patiients a right to be compensated if:

Answer 7

They suffer injury or loss as a result of a doctor’s failure to TAKE REASONABLE CARE.

Question 8

If a doctor wrongfully discloses confidential information about a patient to a third party what is the tort that can be brought against the docto

Answer 8

Negligence.

Negligence protects a patient’s right to have personal information kept private and impose a duty on the doctor to maintain confidentiality.

Question 9

A claim in negligence can be awarded if it is proven that

Answer 9

The doctor didn’t take reasonable care. Reasonable care is care that a reasonable doctor (or specialist) would have exercised in dealing with a patient in similar circumstances.

Question 10

Patients who have suffered injury or loss from a doctor’s wrongful act may sue for breach of contract (in addition to negligence).

In the absence of a special contract between doctor and patient - the ‘contract’ requires the doctor to act

Answer 10

WITH REASONABLE SKILL AND CARE

The contract is not to achieve any special outcome.

Question 11

A patient suffers harm in a public hospital from wrongful action - which types of lawsuits can he bring against he doctor/hospital.

Answer 11

Hospital - negligence + breach of contact
Doctor - only negligence

This is because under Aus law - only a party to a contract can sue or be sued in relation to it. So a patient being treated in a public hospital only has a contract with the hospital.

Question 12

If a competent adult patient is not allowed is detained/not allowed to leave then they can sue for:

Answer 12

The tort of false imprisonment

Question 13

True or false: Competent adult patients can refuse emergency or life saving treatment:

Answer 13

True

Question 14

What is the difference between competence and capacity (capacity to consent)

Answer 14

Competency = legal term - doesn’t fluctuate depending on clinical condition or differ for procedures.
All adults are presumed to be competent unless declared otherwise by the courts.

Capacity = clinical assessment of ability to make decisions. Can change - e.g. patients may lose capacity when they are sedated.
Capacity also depends on the complexity/risk of the thing they are consenting for. E.g. patients with mental illness may still be able to consent to simple things.

Question 15

What are the features of valid consent?

Answer 15

1. Patient is competent to give consent.
2. The consent is given voluntarily.
3. Consent must be informed - the general nature of the procedure, the various options and pros and cons of each, ,the general risks and the material risks to the patient.
   The patient must be able to understand this information.
4. Consent must be specific - removal of mole from back.

Question 16

It is assumed that people under the age of _____ cannot make medical decisions for themselves. Medical decisions for minors can be made by:

Answer 16

18

Parents and legal guardians of minors
• Guardianship bodies (in some cases)
• The Supreme Court of each state/territory
• The Family Court of Australia
• The child (in some cases)

Question 17

What is “Gillick competence” principle and by what features is it assessed?

Bonus mark: can you summarise the Gillick case?

Answer 17

Also known as the “Mature minor doctrine”, it is a principle that states that a child can consent to medical treatment when the child has ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.

It is assessed by:

• Child’s age
• Maturity
• Education
• Level of independence
• ability to express his or her own wishes
• Ability to understand the procedure (how complicated it is - minor procedure, easier to understand and consent)

In Gillick v West Norfolk AHA, Mrs Gillick sought a declaration from the relevant health authority that her daughters, while they were under 16 years of age, will not be provided with advice or treatment related to birth control without her express consent. The health authority refused to provide the requested assurance and Mrs Gillick sought a court declaration that provision of contraceptive advice to girls under 16 was unlawful. Mrs Gillick argued that medical treatment of children under 16 constituted assault without parental consent, as they were unable to provide consent independently. The case went all the way to the House of Lords (the highest appellate court in UK), which ruled that a child can consent to medical treatment when the child has ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. Australian High Court approved the Gillick competence principle in Marion’s case (Secretary, Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218).

Question 18

True or fale: Courts can override refusal of treatment by a Gillick competent child?

Answer 18

True

For example, in Royal Alexandria Hospital for Children v J
[2005] NSWSC 422, blood transfusion was authorised by the court for the Jehovah’s
Witness over 16 years of age suffering from acute lymphoblastic leukaemia.

Question 19

What would you do if a child needed emergency treatment and no one was around to consent?

Answer 19

You could proceed with treatment as the law allows this.

Question 20

What was Medical Board of Australia v Andrew about?

Answer 20

Duty of care to the public when a doctor knows that a patient has the potential to do harm:

Dr Andrew issued a medical certificate for maintaining a driver’s licence for a patient who had had a history of post-traumatic epilepsy contrary to specialist advice. The patient later struck and killed a pedestrian whilst driving.

Question 21

How is negligence different to manslaughter

Answer 21

Negligence is a civil offence
Manslaughter is a criminal offence - the standard of proof is much higher.

To prove medical manslaughter you need to prove:

1. The victim died;
2. The doctor owed duty of care to the victim;
3. The doctor was negligent in breaching this duty of care;
4. The negligent act significantly or substantially caused the accelerated death of the victim, and
5. This negligence amounted to criminal negligence and merited criminal punishment because it fell so far short of the standard of care and involved such a high risk of death or really serious bodily harm.