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Non Dislosure Of Risks Notes

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This is an extract of our Non Dislosure Of Risks document, which we sell as part of our Medical Law Notes collection written by the top tier of Oxford students.

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1.(b) Non-Consent: Actions in negligence based on a failure to provide enough information Cases of consent vitiated through misrepresentation

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1. Where information misrepresented for the purposes of fraud (dentist carrying out unnecessary procedures for financial gain)

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2. Where consent is induced through misrepresentation of the nature of the proposed act/treatment o R v Flattery [1877]: X said to Y - I have a good medical procedure for you. Y said, yep okay. X had sex with her
? Held

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Consent vitiated by fact that nature of act was a deception. o Or where its induced by misrepresentation about the nature of the patient's present condition

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3. Where the act itself is explained fully and consented to but there is deception as to the reasons behind it?
o R v Tabaussum: T claimed he was doing breast cancer research and persuaded two women to take off their tops for him to examine and touch their breasts. He turned out to be doing no such thing
? Held criminally liable

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4. Where D misrepresents his qualifications or attributes?
o R v Richardson: R was a dentist who had been removed from the list of the Dental Register, but continued to give treatment. Patients did not know she had been struck off.
? Held

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Patients not deceived as to the identity of the person or the nature/purpose of the treatment o They were deceived only as to her attributes and qualifications o Therefore not a misrepresentation which negatives consent. o Herring: Odd decision, person likely to be far more concerned about whether a doctor has the necessary qualifications, not who they are. How much information must be provided for consent to be valid?

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There is no doctrine of informed consent o Sidaway v Bethlem RHG [1985]: During an operation to relieve a trapped nerve, Mrs S's spinal cord was damaged, leaving her paralysed. Mrs S based her claim not on negligence in carrying out the operation, but through a lack of the surgeon telling Mrs S of the risks of paralysis that the operation carried. Experts said some, but not all, neurosurgeons would have regarded it as acceptable not to tell of the risk of paralysis.
? Lord Diplock:

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A medical professional can't be acting negligently if they were acting in accordance with a respected body of medical opinion o Doctor only liable if non-disclosure would be unacceptable to all responsible doctors
? Lord Bridge:

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Two extreme positions

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