PLME

Question 1

Diana, aged 51, believed that she was menopausal, but she discovers she is 22 weeks pregnant. She visits her GP, Dr Green, to seek an abortion. Dr Green is confused about the law and asks his colleague to clarify.

A. An abortion would be lawful before 24 weeks only if there is a serious risk to Diana’s health
B. Diana can access abortion before 24 weeks if continuing the pregnancy is more detrimental to her physical or mental health than having an abortion
C. Diana should wait until she is 24 weeks and then, due to her age, she can access abortion due to the serious risk to her health

Answer 1

B. Diana can access abortion before 24 weeks if continuing the pregnancy is more detrimental to her physical or mental health than having an abortion

Question 2

Dr Green explains the abortion procedure to Diana, and she then decides to continue the pregnancy. A month later, a scan reveals that the fetus might have an abnormality that might lead to it having a disability.

A. Diana can decide to have an abortion for any fetal abnormality
B. Diana can seek an abortion on the grounds that there is an abnormality that leads to a risk that the child will have a severe handicap. (there has to be an abnormality)
C. Diana can seek an abortion on the grounds that there is a risk of fetal abnormality

Answer 2

B. Diana can seek an abortion on the grounds that there is an abnormality that leads to a risk that the child will have a severe handicap. (there has to be an abnormality)

Question 3

A potentially fatal virus has been spreading in the US. Borders have been closed, but a US man with the virus arrives via Ireland. Which of the following public health responses is potentially lawful?

1. Make the man wear PPE and deport him to the US on a commercial flight.
2. Detain the man in hospital for mandatory quarantine.
3. Detain the man in hospital for mandatory treatment.

Answer 3

2. Detain the man in hospital for mandatory quarantine.

Question 4

In Montgomery v Lanarkshire, how did the court deviate from earlier precedent?
a. By stating that the doctor has a duty to ensure that the patients is made aware of all the risks of all possible treatments
b. By stating that the doctor has a duty to ensure that the patient is aware of any material risks involved in the recommended treatment, and of any reasonable alternative treatments
c. By stating that the doctor has a duty to ensure that the patients is made aware of any material risks of not having the treatment recommendedd.
d. By stating that the doctor has a duty to ensure that the patients is made aware of the material chances of success with each of the possible treatment options.

Answer 4

b. By stating that the doctor has a duty to ensure that the patient is aware of any material risks involved in the recommended treatment, and of any reasonable alternative treatments

Question 5

To succeed in a negligence claim, the claimant must prove:
a. That the defendant, owed a duty of care, and they breached the duty by causing serious harm to the claimant
b. That the defendant owed a duty of care, they breached that duty and the duty of care caused harm to the claimant
c. That the defendant owed a duty of care, they breached that duty and the breach caused harm to the claimant

Answer 5

c. That the defendant owed a duty of care, they breached that duty and the breach caused harm to the claimant

Question 6

In ‘loss of chance’ of recovery claims, the claimant must show that:
a. On the balance of probabilities, they were more likely than not to recover but for the defendant’s negligence
b. On the balance of probabilities, they would have recovered if the defendant had not missed the chance to cure them
c. The defendant’s negligence was the only reason why they did not recover

Answer 6

a. On the balance of probabilities, they were more likely than not to recover but for the defendant’s negligence

Question 7

Which of the following statements is not true about the duty of confidentiality?
– It is governed by common law and statute
– Its ethical basis can be justified on consequentialist and deontological grounds
– It is an absolute duty
– The duty of confidentiality is found referred to in the Hippocratic Oath

Answer 7

• it is an absolute duty

Question 8

Which English case provides authority for the principle that if there is a risk of significant harm to others, disclosure of personal medical information would be justified?
– Tarasoff v. Regents of the University of California (1976)
– Campbell v. MGN [2004]
– TR(Stone) v. South East Coast Strategic Health Authority [2006]
– W v. Egdell [1990]

Answer 8

• W v. Edgell [1990]

Question 9

• Which of the following statements about individuals who lack capacity is correct?
  – The duty of confidentiality does not extend to adults who lack capacity because of section 4(7) of the Mental Capacity Act 2005
  – The duty of confidentiality applies to infants and children
  – The law requires that when deciding to disclose information about incompetent adults doctors should, where possible, first consult patients and follow their wishes.
  – A duty of confidentiality is not owed to adults who lack capacity

Answer 9

• The duty of confidentiality applies to infants and children

Question 10

• The case of ABC v. St George’s Healthcare NHS Foundation Trust [2017] is authority for: The General Data Protection Regulation:
  – A duty of care can be owed in certain circumstances to a third party outside the doctor /patient relationship
  – health professionals owe a duty of care to all third parties who are genetically related
  – The creation of a general duty of care owed by health professionals to anyone who is not their patient
  – None of the above

Answer 10

• A duty of care can be owed in certain circumstances to a third party outside the doctor/patient relationship.

Question 11

• Palmer v. Tees is authority for which principle of law?
  – A breach of confidence might not be justified if the threat is not directed at an identifiable person, or group of persons
  – Psychiatrists owe a duty of care towards ascertainable individuals who are threatened personally by patients
  – If there is a possible risk of harm to others then disclosure of sensitive data is justified
  – If there is a possible risk of harm to others there is an urgent duty to disclose personal medical information to the media

Answer 11

• A breach of confidence might not be justified if the threat is not directed at an identifiable person, or a group of persons.

Question 12

• Which of the following is NOT a remedy for an action for breach of confidence:
  – Damages
  – Injunction
  – Specific performance
  – All the options are correct

Answer 12

• Specific performance

Question 13

R (Axon) v. Secretary of State for Health [2006] is authority for the principle that:
– Information about the medical details of Gillick competent children must be disclosed only to those with parental responsibility
– If a child is not Gillick competent then parents should be informed about their child’s medical details unless there is a compelling reason not to do so
– Non Gillick competent children are not owed a duty of confidentiality in order to protect them from abuse
– None of the options are correct

Answer 13

– If a child is not Gillick competent then parents should be informed about their child’s medical details unless there is a compelling reason not to do so

Question 14

Julie is 28 weeks pregnant. At her recent doctor’s appointment she has found out that her fetus is likely to has Down’s syndrome and is considering a termination.
A) She can terminate if there is a likely risk that the child will suffer from abnormalities as to be severely handicapped and die upon birth.
B) She cannot terminate the child beyond the 24th week unless there is substantial risk of injury to the mother.
C) She can terminate if there is a substantial risk that if born, it would suffer physical/mental abnormalities as to be severely handicapped.

Answer 14

C) She can terminate if there is a substantial risk that if born, it would suffer physical/mental abnormalities as to be severely handicapped.

Question 15

Which of the following statements about individuals who lack capacity is correct?

– The duty of confidentiality does not extend to adults who lack capacity because of section 4(7) of the Mental Capacity Act 2005
– The duty of confidentiality applies to infants and children
– The law requires that when deciding to disclose information about incompetent adults doctors should, where possible, first consult patients and follow their wishes.
– A duty of confidentiality is not owed to adults who lack capacity

Answer 15

– The duty of confidentiality applies to infants and children

Question 16

The case of ABC v. St George’s Healthcare NHS Foundation Trust [2017] is authority for: The General Data Protection Regulation:
– A duty of care can be owed in certain circumstances to a third party outside the doctor /patient relationship
– health professionals owe a duty of care to all third parties who are genetically related
– The creation of a general duty of care owed by health professionals to anyone who is not their patient
– None of the above

Answer 16

– A duty of care can be owed in certain circumstances to a third party outside the doctor /patient relationship

Question 17

Vera is 75 and has been seriously depressed since the death of her partner. She has decided to go to Dignitas to die. She asks her GP to release her medical records and to write a letter stating that various depression is severe and that none of the treatments have proved effective. Vera asks her only surviving relative her nephew Trevor to help her with arrangements and to go with her to Switzerland. Trevor happily agrees and begins to make the arrangements.

What is the best legal advice for Vera’s GP?
a) Any act by the GP that makes various suicide possible may lead to a prosecution.
b) Vera has the right to access her medical records, but a letter of support may be viewed as assisting the suicide.
c) The GP is unlikely to face prosecution provided there is no encouragement.
d) The GP should take preventative measures by contacting the police and warning them otherwise they risk being prosecuted.

Answer 17

b) Vera has the right to access her medical records, but a letter of support may be viewed as assisting the suicide.

Question 18

Vera is 75 and has been seriously depressed since the death of her partner. She has decided to go to Dignitas to die. She asks her GP to release her medical records and to write a letter stating that various depression is severe and that none of the treatments have proved effective. Vera asks her only surviving relative her nephew Trevor to help her with arrangements and to go with her to Switzerland. Trevor happily agrees and begins to make the arrangements.

2. How is the prosecution policy likely to apply to Trevor?
   a) travis happiness and lack of reluctance to assist together with various depression which cast doubt on her mental health suggests he is not motivated by compassion, so he is likely to be prosecuted.
   b) Travis position as vera’s only relative and beneficiary to have well means he is almost certain to be prosecuted because of that.
   c) Trevor is unlikely to be prosecuted if he can show that he only provided administrative assistance.
   d) Trevor is unlikely to be prosecuted if he can persuade Vera to record a video saying she is determined to die.

Answer 18

a) travis happiness and lack of reluctance to assist together with various depression which cast doubt on her mental health suggests he is not motivated by compassion, so he is likely to be prosecuted.

Question 19

Choose the correct missing words: The case of ……………… confirmed that it is not necessary to seek court approval for treatment withdrawal if it is in the patient’s ………………………, and the ……………….. agree.
a. Re Y, best interests, family
b. Bland, best interests, medics
c. Re Y, advance decision, medics
d. Bland, advance decision, family

Answer 19

a. Re Y, best interests, family

Question 20

Explain Assisted Dying generally?

Answer 20

AD includes both Euthanasia and physician assisted suicide, applied flexibly.

Question 21

What is Euthanasia?

Answer 21

Involves the medic/doctor administering (injecting) the drugs to the patient.

The patient is killed by the doctor rather than causing their own death (suicide) self by self-administration

Question 22

Physician Assisted suicide (PAS) versus Assisted suicide

Answer 22

PAS =e.g., when a Dr provides a fatal prescription.

Assisted Suicide = when a lay person (usually relative/friend) assists in suicide.

Both involve the patient administering the drugs to themselves, so they die by their own hand (suicide) with assistance, e.g., the drugs are prescribed by a doctor, a nurse helps the patient to self-administer/ingest the drugs.

Question 23

Criminal differences with Euthanasia and Assisted Suicide?

Answer 23

EUTHANASIA = Actually (and actively) killing the person (giving them something)
* The common law of MURDER
* Mandatory LIFE sentence

ASSISTED SUICIDE = helping the person to die by suicide (they kill themselves)
* The Suicide Act 1961
* Max sentence 14 years

Question 24

Euthanasia defence

Answer 24

Treated as murder but partial defence of diminished responsibility may be relevant for relatives.

i.e., smothers them because they beg.

Question 25

Euthanasia Policy

Answer 25

The new CPS policy suggests that if a person is only motivated by compassion to kill a person who wants to die (but is unable to achieve their own death) it is not in the public interest to be prosecuted.

Question 26

Euthanasia: healthcare professionals - Double Effect

Answer 26

* Did D realise that his act was virtually certain to cause death/serious injury? The patient’s death is a mere side effect: the shortening of life is justified because death is neither the end nor the means by which the aim (pain relief) is brought about. (i.e., I realise it will probably cause death, but I don’t intend to kill them but relieve pain – DEATH AS A SIDE EFFECT AND NOT THE INTENTION).

Question 27

Assisted Suicide - Suicide Act 1961

Answer 27

‘encouraging or assisting’ Section 2(4) of the SA states that ‘no proceedings shall be instituted... except by or with the consent of the Director of Public Prosecution’. = An extra layer of prosecution discretion…

Question 28

AD - Pretty v DPP and Secretary of State for Home Dept [2001] and Pretty v UK

Answer 28

Article 2 could NOT be interpreted in a way that would confer a right to die. Art 8 was not engaged, but the exceptions under Art 8(2) were lawful and proportionate given the need to protect vulnerable people

Question 29

AD - B v NHS Trust 2002

Answer 29

Contrasts Pretty. Won the right to have ventilation withdrawn, allowing her to die. No obligation to treat her (distinction between acts and omissions).

Question 30

AD - Purdy v DPP

Answer 30

Overruling Pretty, the House of Lords ruled that Article 8 of the ECHR is engaged on the issue of an individual choosing to seek an assisted suicide * Consequently, the DPP was charged with the task of producing an offence specific policy.

Question 31

Policy following Purdy

Answer 31

lay person ‘wholly motivated by compassion’ to assist in the suicide of a competent adult who is determined to die is extremely unlikely to be prosecuted. (over 18 and mental capacity)

Question 32

Nicklinson

Answer 32

Suffering from locked in syndrome... no declaration of incompatibility under s.4 HRA but could if parliament fails to address art. 8 breach in the future. NOT A BLANKET BAN

Question 33

Tort of Negligence

Answer 33

Ø Was C owed a duty of care by D? Ø Was the duty of care breached? Ø Did the breach cause a legally recognised injury?

Question 34

Vicarious Liability

Answer 34

Ø Employers of healthcare professionals in the NHS will be vicariously liable for the acts and omissions of their employees in treating patients in the course of such employment.

Question 35

Direct Liability

Answer 35

Ø Organisations which provide public healthcare may face allegations that they owe a direct duty of care to patients where harm has been the result of a series of systems or managerial, as opposed to clinical, errors. EXAMPLES: patient is admitted for treatment under the NHS, the Trust undertakes to provide her with reasonably careful, competent care. Where this level of care is not provided, the hospital is directly liable.

Question 36

Non-delegable Duties

Answer 36

Ø The organisation is held to remain liable for its breach, even where they have delegated the performance of certain tasks. For example: Delegating the taking of scans or diagnostic tests to another organization/ person

Question 37

s.58 & 59 OAPA 1861

Answer 37

s.58: which is still in force * “Every woman, being with child, who, with intent to procure her own miscarriage, shall administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever… * And s. 59 OAPA 1861: Supplying or procuring the means.

Question 38

The Infant Life Preservation Act 1929:

Answer 38

s.1(1) …any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, will be guilty of felony, to wit, of child destruction…unless it is proved that the act which caused the death of the child was not done in good faith for the purpose of preserving the life of the mother. (consider a pregnant woman who is attacked, if miscarries they are not born alive). Still in force

Question 39

Dr Bourne's case (1939)

Answer 39

Pre Abortion Act. * A duty to save the “yet more precious life” of the mother. “if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under these circumstances and in that honest belief operates, is operating for the purpose of preserving the life of the mother.”

Question 40

Abortion Act, S.1(1)(a)

Answer 40

the termination is performed by a registered medical practitioner and two medical practitioners are of the opinion in good faith that the continuation of the pregnancy would involve greater risk than if the pregnancy were terminated. pre 24 weeks

Question 41

Abortion Act, S.1(1)(b)

Answer 41

.1(1)(b) there is a risk of grave permanent injury to the physical or mental health of the pregnant woman. After 24 weeks

Question 42

Abortion Act, S.1(1)(c)

Answer 42

* s.1(1)(c) there is a risk to the life of the pregnant woman, greater than if the pregnancy were terminated. After 24 weeks

Question 43

Abortion Act, S.1(1)(d)

Answer 43

s.1(1)(d) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be severely handicapped. – More litigation seen here

Question 44

Paton v UK

Answer 44

– the argument that the fetus had a right to life was rejected. '‘The foetus cannot, in English law, in my view have a right of its own until it is born and has a separate existence from its mother.’ 'pregnancy of the applicant's wife was terminated in accordance with her wish and in order to avert the risk of injury to her physical or mental health'

Question 45

Evans v UK

Answer 45

sought permission to have her frozen embryo implanted after her ex-partner had withdrawn his consent – she promised that she would not seek financial support from him – she lost because his right to withdraw was more important than her right to become a biological mother

Question 46

Conscientious Objection

Answer 46

Section 4 of the Abortion Act provides that NO person shall be under any duty... ‘to participate in any treatment authorised by this Act to which he has a conscientious objection’. On grounds of conscience does not relieve him of any duty to intervene to save the life of the mother or to prevent grave permanent injury to her health

Question 47

Doogan v Greater Glasgow and Clyde Health Board [2014]

Answer 47

conscientious objection conferred by S.4(1) of the Act only applied to those actually taking part in the medical treatment. The right did not extend to those performing ancillary, administrative and managerial tasks which could be associated with the process of treatment of a patient in terminating a pregnancy.

Question 48

Blood case

Answer 48

Although the retrieval and storage (without consent) was an offence, it was held that the decision to refuse to allow DB to export the sperm amounted to an interference with her rights allowed Diane Blood leave to export the sperm to Belgium to receive IVF treatment and has consequently had two children.

Question 49

Evans v UK - Repro

Answer 49

UK’s requirement of consent from both parties was based on clear and reasonable principle and within the “margin of appreciation” of legitimate interpretation of the Convention rights.

Question 50

What was the approach established in Bolam?

Answer 50

Is it in accordance with ‘A practice accepted as proper by a responsible body of medical opinion...’ ‘...ordinary skill...’ standard of care assessment

Question 51

What is the Bolitho Gloss?

Answer 51

The body of opinion relied upon must demonstrate that it has a LOGICAL BASIS.

Question 52

three components of an autonomous decision?

Answer 52

Voluntary, Capacitous and informed

Question 53

Airedale Trust v Bland [1993]

Answer 53

It would be lawful to withdraw life sustaining treatment because it is a medical treatment and not just basic care – died and no criminal liability as doctors no longer has a duty to treat. Act/omission distinction

Question 54

Establishing valid consent?

Answer 54

- doctor provided adequate info - patient understood info and can decide/communicate -patient acts voluntarily and free from coercion

Question 55

The capacity assessment

Answer 55

MCA 2005 Section 3: - understand info relevant - retain - use & weigh - communicate

Question 56

Best interests assessment?

Answer 56

s4.5: must not be motivated by a desire to bring about death MCA 2005 Section 4 (6) - past/present wishes and feelings - beliefs & values - named person - engaged in caring - donee or LPA - deputy

Question 57

Aintree v James [2023]

Answer 57

According to Lady Hale: Does not mean that wishes will be decisive but they should play a part. “insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values, or the things which were important to him, it is those things which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”

Question 58

NHS Trust v Y [2018]

Answer 58

Prior judicial approval for withdrawing treatment is not required unless there is a dispute as to best interests: (as long as medics and families agree)

Question 59

No consent & Negligent consent - legal consequences?

Answer 59

No consent: no honest/basic info = assault or GBH or civil battery. Negligent consent: some basic info

Question 60

Montgomery v Lanarkshire

Answer 60

Deviated from Bolam.... 'take reasonable care to ensure patient is aware of any MATERIAL RISKS involved in treatment and any REASONABLE alternative or variants.' 'would a REASONABLE person in patients position be likely to attach significance to the risk?'

Question 61

Identify the most accurate statement: a. Although assisting a suicide is unlawful, prosecution policy means that no one will be prosecuted b. Although assisting a suicide is unlawful, prosecution policy means that prosecution is unlikely unless you are related to the victim c. Although assisting a suicide is unlawful, prosecution policy means that prosecution is unlikely if you are wholly motivated by compassion d. Although assisting a suicide is unlawful, prosecution policy means that prosecution is impossible unless you have benefitted from the victim’s death

Answer 61

c. Although assisting a suicide is unlawful, prosecution policy means that prosecution is unlikely if you are wholly motivated by compassion

Question 62

Campbell v Mirror Group HL

Answer 62

MGN was liable as was not in public interest and "obviously private"

Question 63

Coco v Clark test

Answer 63

1.) information with the 'quality' of confidence 2.) 'Confidential Circumstances' 3.) Unauthorised Use to the detriment?

Question 64

X v Y [1988]

Answer 64

HIV positive GP's had info leaked. Rejected ‘Preservation of confidentiality is the only way of securing public health'

Question 65

W v Egdell [1990]

Answer 65

convicted patient. Although doctor owed obligation of confidence the public interest in safety on this occasion outweighed.

Question 66

Disclosure for protection of others

Answer 66

Statutes may require doctors to supply info on request of police BUT there is no general obligation to volunteer info

Question 67

Disclose if risk to others

Answer 67

May disclose to an appropriate third party without consent if: - the risk of harm is greater than patients right and the public interest in confidentiality - Dr has taken all reasonable steps to gain consent

Question 68

Max is 15 years old, and he needs a life-saving blood transfusion. He understands that without it, he will die. Due to his religious beliefs, which his parents share, he refuses to consent.

Answer 68

ANSWER: He is a child so in his best interests to override the parents belief and save his life. Courts will authorise treatment despite refusal – once 16, they can consent but not necessarily refuse because still a minor – likely to hinge on best interests.

Question 69

Flo is in the final stages of pregnancy and is suffering from pre-eclampsia, which could prove fatal for her and the foetus. She refuses to consent to a caesarean section because she is committed to a ‘natural birth’, and she is convinced that a C-section will be very harmful to her.

Answer 69

SWER: Is a capacitous adult and if she understands the risks, then she can refuse – but if she does not have capacity and does not understand the risks, the courts will say that she does not understand the consequence of her decision – can order a c-section – the belief about natural birth is questionable.

Question 70

Arthur was injured in a serious accident which left him paralysed from the neck down and reliant on a ventilator. He has withdrawn consent to ventilation, but doctors have refused to stop the treatment because it would lead to death.

Answer 70

ANSWER: Court would permit withdrawal of treatment provided he is fully aware of his decision and the consequences – doctors cannot refuse to stop treatment in this circumstance – hinges on capacity.

Question 71

Which statement is true? - a woman has a legal right to an abortion under the Abortion Act 1967 for whatever reason - a woman has no legal right but a right to request under the Abortion Act 1967

Answer 71

- a woman has no legal right but a right to request under the Abortion Act 1967

Question 72

What is the violinist scenario?

Answer 72

Jarvis: would you unplug yourself from the famous violinist of whom you share a rare blood type - unwanted pregnancy analogy in favour of women's rights.

Question 73

The Welfare Clause?

Answer 73

s13(5) HFE Act: A woman shall NOT be provided with treatment services UNLESS account has been taken of the WELFARE of the child who may be born as a result of the treatment (including the need of that child for SUPPORTIVE PARENTING), and of any other child who may be affected by the birth.

Question 74

general rules on withdrawing life sustaining treatment?

Answer 74

AD: withdrawal from definitely dying patients is usually uncontentious. competent adults have the right to refuse life sustaining treatment per B v NHS

Question 75

AD: DUTY TO TREAT - Criminal Liability

Answer 75

Healthcare professionals owe a duty to treat so could be liable if they withdraw or omit treatment. DOT will expire if further treatment is futile and not in patients best interests.

Question 76

AD: Limitations of withdrawal

Answer 76

Withdrawal of artificial nutrition and hydration required evidence that: — (1) every effort should have been made to provide rehabilitation for at least six months; — (2) diagnosis of irreversible PVS should not be considered confirmed until at least 12 months after the injury; — (3) diagnosis should be agreed by two independent doctors; and — (4) generally, the views of the patient’s immediate family will be given great weight.

Question 77

AD: How do we approach patients with minimal consciousness?

Answer 77

Common law: withdrawal may be acceptable if in patients in best interests. Broad assessment of welfare

Question 78

AD: W v M and Others

Answer 78

— Baker J was not prepared to accept that M’s “experiences are wholly, or even on balance negative” — Thus, irrespective of the evidence relating to M’s past wishes and feelings, the sanctity of life should be prioritised. — BUT M should be subject to a ‘Do Not Resuscitate’ order, and; — If infection occurs, the decision to treat should be left to doctors in consultation with M’s family.

Question 79

Autonomy & Consent: Airdale v Bland

Answer 79

‘If the patient is capable of making a decision on whether to permit treatment… his choice must be obeyed even if on any objective view it is contrary to his best interests’. Not murder to withdraw life-sustaining treatment as not in best interests

Question 80

Public Health (Control of Disease) Act 1984

Answer 80

provides for COMPULSORY medical EXAMINATION, REMOVAL to hospital or DETENTION in hospital of a person suffering from or carrying a notifiable disease. But note that there is no authority to give compulsory treatment.

Question 81

section 3 MCA - Functional Capacity assessment

Answer 81

u (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— u (a) to understand the information relevant to the decision, u (b) to retain that information, u (c) to use or weigh that information as part of the process of making the decision, or u (d) to communicate his decision (whether by talking, using sign language or any other means).

Question 82

Notes on Capacity

Answer 82

- It is DECISION SPECIFIC - Onus falling on those seeking to deny capacity - in s.5, REASONABLE STEPS must be taken

Question 83

Nancy is permanently minimally conscious after a skiing accident two years ago. The medics say that continued treatment is futile. Nancy’s father believes that she would not want to live on in this condition, but her mother argues that Nancy is still enjoying aspects of her life. Which of the following approaches is most legally sound: 1. The medics should decide whether the father or the mother provides the most compelling account of Nancy’s wishes. 2. Because the next of kin, can’t agree the default should be to continue treating Nancy 3. Because the next of kin can’t agree, the hospital should seek court authorisation before withdrawing treatment

Answer 83

3. Because the next of kin can’t agree, the hospital should seek court authorisation before withdrawing treatment

Question 84

Advance decision making

Answer 84

section 23-25 of the MCA

Question 85

Advance Refusals

Answer 85

section 25 MCA states that an advance decision to refuse life-sustaining treatment must: v Specify which treatment/s are to be refused v Be in writing v Be signed by P – or by another with P’s authority v Be witnessed

Question 86

LPA

Answer 86

Person over 18 can appoint another to act as proxy decision maker or court can appoint a deputy

Question 87

UNCRPD

Answer 87

Art 12 - supported decision making - equal recognition before the law.

Question 88

Autonomy and consent: McCulloch and Others

Answer 88

Key Issue: What test should be applied when deciding whether an alternative treatment is reasonable and should be discussed with the patient? The correct test is the ‘professional practice test’ set out in Bolam. It would be an unwarranted extension of the principle set down in Montgomery to allow the appeal.

Question 89

Autonomy and Consent: Causation

Answer 89

Must show on balance that had they received the info concerning risks/side-effects, they would not have sustained the damage. (i.e., they would have refused)

Question 90

CN: The Morecambe Bay NHS Scandal

Answer 90

Led to Reports - failures on almost every level

Question 91

CN: Statutory duty of candour

Answer 91

introduced following investigations - statutory duty to inform and be candid

Question 92

Reasons for bringing a claim in negligence

Answer 92

- an explanation/apology - Assurances - held to account - compensation

Question 93

CN: Vicarious Liability - Barry Congregation of Jehovah's witnesses

Answer 93

Stage One: employment or akin to employment Stage Two: wrongful conduct closely connected

Question 94

CN: Direct Liability

Answer 94

Organisations may face allegations that they owe a direct duty of care - systemic errors

Question 95

Duty of Care: Good Samaritans?

Answer 95

No duty to rescue in English law (may only breach professional codes of practice)

Question 96

Breach: Wilsher v Essex

Answer 96

No allowance is made for inexperience

Question 97

CN: Test for causation

Answer 97

The 'But For' Test but for the breach they would not have suffered the injury

Question 98

CN: Standard of Proof

Answer 98

Balance of probabilities: more than a 50% chance that breach caused the injury

Question 99

Material Contribution

Answer 99

Used when combination of negligent and non-negligent causes of injury - will be responsible for proportion

Question 100

Material Contribution: McGhee

Answer 100

'material increase in risk'

Question 101

Material Contribution - Fairchild

Answer 101

Employer increased the risk of harm was enough to show material contribution

Question 102

Identity of negligent party?

Answer 102

Where impossible to identify - all liable for their share

Question 103

Material Contribution: Bailey

Answer 103

'where medical science cannot establish the probability that 'but for' - it will be modified and claimant will succeed

Question 104

Loss of Chance: Gregg v Scott

Answer 104

NOT ACTIONABLE

Question 105

CN: Surgery

Answer 105

Consent does not always render contact legitimate - must be 'reasonable'

Question 106

Gross Negligence Manslaughter

Answer 106

- negligence must be 'gross' - doctor must demonstrate 'such disregard for the life and safety' no need for state of mind evaluation

Question 107

GNM: Key Case - Adomako

Answer 107

Anaesthetist - failed to notice - patient died - convicted of GNM

Question 108

Gross Negligence Manslaughter: Broughton principles

Answer 108

- DOC - Breach - serious/obvious risk of death at time reasonably foreseeable - breach caused death - view of jury

Question 109

GNM: Dr Bawa Garba

Answer 109

Convicted - actions not intention not reckless

Question 110

Corporate Manslaughter and Corporate Homicide Act 2007

Answer 110

- DOC owed - 'gross' breach - death caused by organisation or management

Question 111

Wilful Neglect - S.20 Criminal Justice and Courts Act 205

Answer 111

It is an offence to ill treat or wilfully neglect that individual - applies to all care workers including healthcare professionals

Question 112

What does the GMC investigate?

Answer 112

s.35C(2) Medical Act: - misconduct - deficient performance - conviction - adverse health

Question 113

After GMC investigation?

Answer 113

Three Steps: - CONCLUDE - ISSUE A WARNING - REFER TO TRIBUNAL (MPTS)

Question 114

When will GMC Refer to MPTS?

Answer 114

- serious or persistent departures from good medical practice - statutory duty to protect the public - realistic prospect - easily remediable

Question 115

Misconduct - Roylance

Answer 115

negligence does not amount to misconduct unless serious must be linked to a practice of medicine

Question 116

CN: Multiple Jeopardy

Answer 116

A single incident leads to multiple strands of investigation

Question 117

Four Principles of medical ethics

Answer 117

- Autonomy - Non-maleficence: do not harm - Beneficence: do good - Justice

Question 118

"I don't want to know" - patient refusal

Answer 118

- right to not be informed - basic info may need to be given

Question 119

Autonomy of...

Answer 119

- thought - will - action

Question 120

Exceptions to rules of privacy - Justifications GMC para 9

Answer 120

- consents - explicitly consents for other purposes - disclosure for overall benefit to patient who lacks capacity - required by law - 'justified in the public interest'

Question 121

Privacy: Art 8(2)

Answer 121

prevention of crime, protection of health or morals, protection of the rights and freedom of others

Question 122

Limits of ABC ruling

Answer 122

Need for relationship of proximity and reasonable foreseeability of harm

Question 123

lacking capacity: childen/young people

Answer 123

Observe capacity assessment