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Law Notes Medical Law Notes

Non Dislosure Of Risks Notes

Updated Non Dislosure Of Risks Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest...

The following is a more accessible plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1.(b) Non-Consent: Actions in negligence based on a failure to provide enough information

Cases of consent vitiated through misrepresentation

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

  • 2. Where consent is induced through misrepresentation of the nature of the proposed act/treatment

    • 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

        • Consent vitiated by fact that nature of act was a deception.

    • Or where its induced by misrepresentation about the nature of the patient’s present condition

  • 3. Where the act itself is explained fully and consented to but there is deception as to the reasons behind it?

    • 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

  • 4. Where D misrepresents his qualifications or attributes?

    • 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

        • Patients not deceived as to the identity of the person or the nature/purpose of the treatment

          • They were deceived only as to her attributes and qualifications

          • Therefore not a misrepresentation which negatives consent.

    • 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?

  • There is no doctrine of informed consent

    • 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:

        • A medical professional can’t be acting negligently if they were acting in accordance with a respected body of medical opinion

          • Doctor only liable if non-disclosure would be unacceptable to all responsible doctors

      • Lord Bridge:

        • Two extreme positions

          • Either doctor has to tell patient of ALL the risks, remote, serious or otherwise unless clinical reason not to do so

          • OR doctor must decide treatment and decide, in the patient’s best interest, that there is no need to tell the patient any of the risks if it will scare them.

        • Clearly neither position suffices

          • So should go for a general position without ousting Bolam principle.

          • Bolam should remain in force

            • But subject to the proviso that patients must be informed of any material and serious risks (e.g. 10% risk of stroke)

              • Even if...

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