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Law Notes Medical Law Notes

Trespass To Person Notes

Updated Trespass To Person 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:

Law

  • Health professional who intentionally/recklessly touches P w/out consent commits battery + tort of negligence and/or tort of person if has no legal ‘flak jacket’

  • P’s consent

  • Consent of authorised person on P’s behalf

  • Defence of necessity

  • Who can consent

  • Competent adults

  • Incompetent adults – must be in best interests

  • Gillick competent kids – parents/adults w/parental resp.

  • Incompetent children – parents/parental resp., court authorisation or necessity

  • What is consent

  • Must show

  1. competent

  2. sufficiently informed (understands in broad terms nature & purpose)

  • Chatterton v Gerson–P warned of numbness in 1st operation, not in 2nd, paralysis resulted; held: informed in broad terms of nature & purpose, = no trespass, sue in negligence (battery only where consent’s negated by misrep/failure to inform)

  1. not subject to coercion or undue influence

  • Rare b/c difficult to demonstrate

  • Freeman v Home Office (No2) – prisoner claimed coercion b/c even if consented to admin of drugs, it wasn’t real b/c a prisoner. Held: informed in broad terms of nature & purpose, the fact he felt he had no option isn’t decisive

  • ReT (Refusal of Treatment) woman Jehovah witness refused transfusion after seeing her mother, her father & brother successfully claimed consent wasn’t real b/c her will was overborne. Key: if outside influence caused her to depart from own wishes to such extent as to be regarded undue by the law

  • NB: shows there’s a higher hurdle where P refuses than where she consents (Feldman)

  • Reibl v Hughes (Canada) – D didn’t inform P of risks b/f operating narrowing artery in his nexk, suffered paralysis, held: P consented to basic nature & character of operation.

  • 3 consent approaches

  1. Objective – what would reasonable P do

  2. Subjective – what would this P do

  3. Modified objective – what would reasonable P w/some of this P’s characteristics (age, sex etc) do

  • Form of consent

  • None in particular, unless no true consent

  • Positive – whether consented, not whether failed to object

  • St George’s Healthcare Trust v S–social workers & doc successfully applied to disperse w/C’s consent to C section b/c otherwise would die; held to be wrong b/c adult of sound mind can refuse consent even where life depends on it. although pregnancy increased her resp. It didn’t diminish her entitlement to decide, even if decision was repugnant.

  • Precision

  • No clear guidance

  • Best to get for each operation/treatment, unless there’s necessity

  • Consent of Children

  1. 16/17– can consent to treatment only (Family Reform Act 1969): diagnosis + ancillary procedures

  • otherwise only if Gillick competent

  1. Gillick competent sufficient maturity to decide/understanding & intelligence must understand issues, effects, consequences of treatment + consent to particular issue

  • Gillick v West Norfolk Health Authorityprovision of contraception advice to 16y/old girls is lawful if they are Gillick competent (understand main issues, effects & consequences)

  1. Generally

  1. Parents/persons w/parental resp. can also consent

  2. Court order under s8 Children Act 1989 or court’s inherent jurisdiction

  3. Defence of necessity – urgent treatment (trumps parental objections)

  • Disagreements

  1. Doc v parent/child – can’t require doc to do something he doesn’t think is appropriate

  2. Child v parents – Gillick competent child’s consent, court order or necessity trump parents’ objections doc needs one flak jacket only

  • R (Axon) v Sec of State for Health – once child becomes Gillick competent, parent loses any right to respect for family life under HRA 1998 in so far as pertains to making decisions for him

  1. Parent v parent – should consult on serious issues but otherwise one’s consent is fine

  2. Court v parents – court can override their wish if not in acc w/child’s welfare

  • NB: Hoffman: where parents spend a great deal of time w/child, their views may be of particular value b/c they know him but court must keep in mind they might be coloured w/emotion

  • Treatment to which can’t consent

  1. That which doc doesn’t think right to provide

  2. For reasons of public policy (e.g. R v Brown)

  • E.g. BDD: removal of health limbs pursuing to disorder should allow or not?

  • Tort of False Imprisonment

  1. Mandatory treatment for mental disorders – although taking P, autistic male who lived w/carers but got agitated at day centre to the hospital against his will = detention (i.e. in absence of justification, a tort of false imprisonment is committed) b/c P was kept in an unlocked ward meant there was no detention in fact (R v Bournewood Trust ex parte L)

  2. Mandatory treatment for addiction –parenspatriae jurisdiction can be exercised by the court only after birth, so court order to detain a glue sniffer to protect her unborn child couldn’t be issued b/c not a legal person & can possess legal rights until born & viable (Winnipeg Child & Family Services v G – Canada Supr. Court)

  • MCA 2005

  • P lacking competence can be provided w/treatment in his best interests only

  • Competence

  • Definition3 aspects (Thorpe J in ReC)

  1. Comprehension& retention treatment info

  2. Belief in that info

  3. Ability to weigh it in the balance

  • Low threshold!

  • Issue specific

  • Rebuttable presumption in favour of competence (s1(2)) – burden on doc

  • P is not competent if at material time can’t decide b/c of impairment/ disturbance in functioning of mind or brain

  • If no impairment or disturbance = capacity, no matter how impaired the reasoning itself (s2(1)) or b/c decisions appear irrational/not wise (s1(4))

  • P is unable to decide if can’t (s3(1))

  1. Understand related info/retain it – info to be given in appropriate means (s2(2))

  2. Use the info/weigh it up

  3. Communicate his decision by any means

  • Competence can’t be established by ref to appearance, age, condition, aspects of behaviour alone but these can be taken into acc (s2(3))

  • Advance Decisions

  • P must be 18 or over

  • Negative only – refuse treatment

  • Refusing life saving treatment in writing, signed...

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