RISK MANAGEMENT

Medical LawClinical Negligence

Hani Azri – LLB Scholar BPP University College Law School

London

Summary

Medical Law overview Clinical Negligence The Duty of Care Bolam test & Bolitho Standard of care ; important case law Consent

Medical Law Overview

An amalgam of various law : criminal, civil, European, administrative etc...

Includes: Bioethics Clinical Negligence Resources Allocation Consent Reproduction, Contraception Liability before

birth, Abortion & Termination Organ Donation, transplantation, death &

dying

Clinical Negligence

CN refers to professional malpractice within the medical field.

Type of Action: Criminal Civil Regulatory

Clinical Negligence

Why ? Increased knowledge of patients

(internet, rights/law) Increased pressure on Doctors….. Legal Aid … “no win no fees lawyers” Influence from other countries

The Duty of Care

R v Bateman Cassidy v Ministry of Health Barnett v Chelsea & Ken. Hospital Bull v Devon AHA Prendergast v Sam & Dee

Bolam Test 1957

Main test: Bolam v Friern H.M.C per McNair J

CN claims have 70 % chance of failure! Non clinical Negligence claims have 70%

chance of success! Critics:

Too generous toward doctors Choice between different medical opinion Deviation from standard professional practice How should a body of medical professional should

be determined ?

Bolitho 1997

Court can find a body of professional doctors illogical .

Breach/Standard of care

Standard practice : NICE, NHS trust etc... A reasonable Body ? Defreitas v O’brien 11/1000 Differing opinions : Maynard v W. Midlands R.H.A Error of judgement : Whitehouse v Jordan Level of skill: Shakoor v Situ State of the art defence: Crawford v Charing

Cross Hospital

Level of Risk/information: Sidaway v Board of Governors of BRH Pearce v United Bristol HC NHS Trust Chester v Ashraf (2004)

Consent Consent : genuine agreement to treatment Can be decided by patients, by proxy, by the court or by necessity. Requirements:

patient is competent Patient is sufficiently informed:

Dept of Health Code: Good Practice in Consent (2001) GMC Code of Practice

Consent is totally voluntary Re T (Jehovah Witness)

Insufficient information can lead to : Criminal liabilities : R v Tabaussum (2005)

OR

Negligence : in not informing the patient of all relevant information: Sidaway v Bethlem HMC Patient who ask about their treatment Not sufficiently warned about the risks : Roger v Withaker Chester v Ashraf

What is a “Reasonably Competent Doctor” ?

Bolam test: “as long as another body agree on the treatment”

Bolitho: “ the court can decide that the body is illogical”Risks and information given to patient: “ sufficient ? “ 1-

2 %Patients request for all information: “all information

should be given unless emotionally distress”

Principalism : patient’s autonomy (right to refuse treatment), Beneficence, no malfeasance, Justice (no discrimination).