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Consent To Treatment And Its Limits Notes

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Consequences of acting without consent Doctor acting in "Best interests" is not enough - patient must consent

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Technically, a doctor who intentionally or recklessly touches a patient should be subject to liability in two ways: o Criminal proceedings for battery
? Although this is unlikely unless it was malicious - e.g. sexual assault o Tort suit
? For battery

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Question is very patient focused - did patient consent to touching?
? Or for negligence

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Here, even though there might have been apparent consent, the doctor acted negligently in either o Failing to provide information, or enough information, for the patient to make an informed choice o OR doctor misrepresented the treatment/patient's condition

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Question focused on whether doctor performed as reasonable doctor should of done. Some important differences between tort of battery and tort of negligence

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Where a patient agreed to an operation with very limited information... o Negligence focuses on the question of whether the medical professional acted in accordance with an accepted body of medical opinion
? Question to ask = Bolam

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Was the information provided by the professional the amount of information considered appropriate by a respectable body of medical opinion?
? And also Chester v Afshar

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Had the patient had the information they did not receive, they would still not have gone ahead with the procedure o Whereas battery looks at whether the patient consented or not
? Question to ask = Chatterton v Gerson [1981]:

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Did the patient consent in broad terms to the nature of the procedure, given their limited understanding of what was entailed?

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Relevance of what would have happened had information been received - needs to be some harm o In negligence, it would be a defence to say that the patient would have still consented even if they had heard the extra information that was not disclosed o However, it will not be a defence to battery if it was established that the patient did not consent

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Punitive damages can be awarded in a battery case, but not a negligence case

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Losses o In negligence, only foreseeable losses can be claimed o In battery, all losses flowing from the operation w/o consent will be recoverable

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Battery needs touching - negligence does not The legal "flak jacket" - how to avoid becoming liable for tort of battery or negligence Re W:

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Held

o In order to be acting lawfully when touching a patient, one of three things are needed:
? The consent of the patient
? The consent of someone who is authorised to consent on the patient's behalf (e.g. parent consenting for treatment to child)
? The defence of necessity

1. Actual Consent of the Patient

1. The person is competent enough to give consent (or refuse it)

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The presumption in favour of capacity and against judgements on age/appearance o MCA s.1(2):
? A person must be assumed to have capacity unless it is established that he lacks capacity o MCA s.2(3)
? A lack a of capacity cannot be established merely by reference to

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(a) a person's age or appearance, or

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(b) a condition of his, or an aspect of behaviour, which might lead others to make unjustified assumptions about him

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When someone lacks capacity o MCA s.2(1): Some kind of impairment of the mind/brain
? A person lacks capacity in relation to a matter if at the material time, he or she is unable to make decision for himself in relation to the matter

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Because of an impairment of/disturbance in function of the mind or brain

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Code of Practice: Dementia, severe learning difficulties etc. o MCA s.3(1): A person can't make a decision if they're unable to do any one or more of these four:
? (a) to understand the information relevant to the decision
? (b) to retain that information
? (c) to use or weigh that information as part of the process of making the decision
? (d) to communicate his decision (by talking, sign language, or any other means) o MCA s.2(2): BUT a person is not to be regarded as unable to understand the information relevant to a decision
? If he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances

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(e.g. simple language, visual aids, other means)

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Herring: Competence is "issue specific" o Gillick v West Norfolk and Wisbech AHA [1985]:
? Lord Fraser:

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It is absurd to suggest that a 15 year old could not effectively consent to have a medical examination of some trivial injury to his body or even to have a broken arm set o For more complex procedures, this may not be the case.

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However, providing their capable of understanding what it proposed o and of expressing his or her own wishes,

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