(full flashcard set) topic 1 - informed consent🦜
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Why is the Hippocratic oath significant in modern medical ethics?
Jackson ch1 p2 → Hippocratic Oath establishes ethical duty of D’s to ‘do no harm’
forms foundational principle of non-maleficence in modern bioethics
why are ethical principles necessary in medical law?
guide professionals in resolving uncertainty where law is indeterminate
e.g. in situations involving life, death and patient vulnerability
how does Brazier justify relationship between law and ethics in medicine?
as health professionals decide on life and health, law must set minimum standards of conduct while remaining concerned with ethical dimensions underpinning standards
what critique does Jones offer of informed consent?
In ‘Informed Consent and Other Fairy Stories’ (1999)
IC is often illusory due to power imbalance where D’s possess superior medical knowledge and P’s are vulnerable
how does Annas’ analogy reinforce critiques of medical authority?
comparison with prisoners to highlight dependency, loss of autonomy and institutional power asymmetries within medical settings
what are the 4 key principles of biomedical ethics?
non-maleficence → obligation to avoid harm
beneficence → duty to do good
respect for autonomy → recognising informed decision making
justice → fair distribution of benefits and burdens
how do these principles function in medical law?
they provide a structured ethical framework that assists courts and D’s in balancing competing interests in complex medical decisions
what is the pro-autonomy argument for AD?
supporters argue that respecting rights to autonomy and self-determination at end of life is fundamental right
current prohibition causes harm by forcing P’s to endure intolerable suffering
what is the counter-argument of non-maleficence?
opponents argue that terminally ill P’s are inherently vulnerable, making autonomy discourse unreliable
AD breaches non-maleficence by intentionally causing harm
why do Fenton and Arras criticise purely domestic ethical frameworks?
national and culturally specific ethical principles are inadequate for global health challenges which require transcultural moral framework
why are human rights significant in global medical ethics?
offer shared moral language that recognises moral pluralism, enabling ethical decision making across all cultures
which ECHR rights are relevant to medical law?
art 3 → freedom from inhuman or degrading treatment
art 5 → liberty
art 8 → respect for private life, including bodily integrity and self-determination
what was established in LB of Lambeth v MCS [2018]?
court confirmed that arts 5 and 8 ECHR are integral to medical law
requiring public bodies to ensure incapacitated individuals aren’t unlawfully deprived of liberty and that private life rights are respected
what are the 3 elements of valid consent?
mental capacity → ability to make decision
informed → adequate info provided
voluntary → no coercion or undue influence
why is mental capacity pivotal in consent cases?
psychiatric conditions can impair decision making ability, negotiating valid consent and triggering best interests assessments
can P’s demand specific treatment?
no
while P’s can refuse treatment
they can’t compel D’s to provide treatment
what principle was affirmed in Kings College Hospital NHS Trust [2015]?
capacitous adult has sovereignty over own body and mind including absolute right to refuse treatment even if refusal leads to death
how does Re Robb [1995] support P autonomy?
confirms self-determination principle requiring respect for P’s wishes regardless of medical opinion
why does law impose disclosure obligations on D’s?
to correct info and power imbalance between D and P and uphold meaningful autonomy
what legal claims arise from failures in informed consent?
trespass (battery) → where consent was invalid due to lack of info
negligence → failure to warn of material risks that subsequently materialise
why is battery considered extreme claim in medical law?
implies absence of valid consent, reserved for cases involving fundamental informational failure
What is the legal definition of battery in medical law?
Battery consists of the intentional and direct application of force to another person without lawful justification or valid consent (Collins v Wilcock).
What level of intention is required for battery?
The defendant must intend the act (a voluntary or volitional movement), not the harm; intention to injure is unnecessary (Wilson v Pringle).
Is hostility a requirement for battery?
No. Hostility is not required; what matters is intentional physical contact without lawful excuse (Collins v Wilcock).
Why is battery described as ‘actionable per se’?
The claimant does not need to prove damage; the tort is complete upon the unlawful touching itself.
What is the significance of Wilson v Pringle for medical battery claims?
Liability extends to all direct consequences of the act, even if unforeseeable and even if the defendant only intended to touch, not injure.
Why is consent central to medical battery?
Valid consent renders physical contact lawful; without it, medical treatment constitutes battery (St George’s Healthcare NHS Trust v S).
What is the test for ‘real consent’ in medical law?
Once a patient is informed in broad terms of the nature of the procedure and consents, consent is real; failure to warn of risks sounds in negligence, not battery (Chatterton v Gerson).
When does failure to inform amount to battery rather than negligence?
Where the nature of the procedure itself is not explained in broad terms, invalidating consent.
Does a doctor’s mistaken belief in consent negate battery?
No. A mistaken belief does not excuse battery where consent was invalid (C v G; Schweizer v Central Hospital).
Why was the doctor liable in Schweizer v Central Hospital?
Consent was based on incorrect information; therefore, the procedure was performed without valid consent.
When does misrepresentation vitiate consent?
Where the deception relates to the nature or purpose of the procedure, not merely administrative matters.
Why was there no battery in R v Richardson?
The misinformation concerned the dentist’s employment status, not the nature of the procedure; patients consented in broad terms.
What principle was established in Appleton v Garrett?
Consent is invalid where information is given in bad faith, rendering treatment a battery.
Why did R v Flattery amount to battery?
Physical touching was procured through fraudulent medical justifications, negating consent.
Why was R v Tabassum classified as battery?
Consent was invalid because the defendant was not medically qualified, undermining the very basis of consent.
When does exceeding instructions amount to battery?
Where a doctor performs treatment expressly prohibited by the patient (Allan v New Mount Sinai Hospital).
What principle emerges from Ashcraft v King?
Conditional consent must be respected; failure to meet specified conditions may amount to battery.
Are consent forms conclusive evidence of valid consent?
No. They are merely one piece of evidence and do not guarantee informed consent.
Why are consent forms described as ‘window dressing’?
Because they may create the appearance of consent without meaningful patient understanding (Taylor v Shropshire HA).
When does a failure to warn give rise to negligence?
When a material risk is not disclosed, the risk materialises, and the patient suffers harm they would have avoided if warned.
What are the three elements of negligent failure to warn?
Duty of care
Breach
Causation and damage
What establishes a doctor’s duty of care?
Doctors owe a duty to exercise reasonable care in treatment, diagnosis, and advice (Bolam; Sidaway).
What rule did Montgomery v Lanarkshire establish?
Doctors must take reasonable care to ensure patients are aware of material risks and reasonable alternatives.
How is ‘materiality’ defined?
A risk is material if a reasonable person in the patient’s position would find it significant, or the doctor knows the patient would.
Why does Montgomery represent a paradigm shift?
It moves from a doctor-focused (Bolam) to a patient-focused standard of disclosure.
Are patients entitled not to know?
Yes. Doctors may withhold information if disclosure would cause serious detriment, or where patients lack capacity or are unconscious (Cave & Purshouse).
What contextual factors affect disclosure duties?
Patient’s disposition
Impact on life
Intelligibility
Timing
Checking understanding
What duty did Smith v Tunbridge Wells establish?
Risks must be disclosed in simple, intelligible language
Must doctors ensure patient understanding?
Traditionally no (Al Hamwi), though courts increasingly expect doctors to check understanding (Mordel).
Why is timing crucial in disclosure?
Disclosure must occur in appropriate circumstances to allow meaningful choice (Smith v Salford; Lybert).
Is there a duty to disclose safer alternatives?
Yes, where alternatives pose less risk (Birch; Nicholas; Cooper).
What limitation did Duce v Worcestershire introduce?
If the doctor did not know and ought not to have known of a risk, the claim fails.
How did McCulloch v Forth Valley clarify alternative treatments?
If expert evidence shows an alternative is unreasonable, failure to disclose it is not negligent.
Do doctors need to disclose minute or theoretical risks?
No. Such risks need not be disclosed (A v East Kent Hospitals).
Why is causation particularly difficult to establish in failure-to-warn cases?
Because the claimant must show that, had they been warned, they would not have consented to the procedure—an inherently hypothetical inquiry prone to hindsight bias.
What is the ‘but for’ test in failure-to-warn cases?
The claimant must show that but for the doctor’s negligent failure to warn, they would not have consented and would not have suffered the injury.
What major criticism is associated with the ‘but for’ test?
It risks hindsight bias, as courts assess decisions with knowledge of the adverse outcome.
What alternative test did courts adopt to mitigate evidential difficulty?
The reasonable person test, asking whether a reasonable patient would have consented if warned.
What did Smith v Barking, Havering and Brentwood HA [1994] establish?
If a reasonable person would have proceeded with the treatment despite the risk, the causation claim fails.
Can claimants rely on personal characteristics to satisfy causation?
Yes, if they can show they would have acted differently from a reasonable person due to relevant subjective factors.
How did Jones v North West Strategic Health Authority [2010] advance this approach?
The court accepted religious beliefs as a legitimate factor explaining why the claimant would not have consented.
What further subjective factor was recognised in FM v Ipswich Hospital NHS Trust [2015]?
A traumatic past experience was recognised as relevant to the claimant’s decision-making.
Why is witness credibility critical in causation analysis?
Courts assess whether the claimant’s evidence is consistent and intelligible; credible testimony increases the likelihood of causation being accepted (Birch v UCLH).
Who is a ‘hesitant patient’ in medical negligence?
A patient who would have undergone the procedure eventually, but at a later time, had they been properly warned.
What principle was established in Chester v Afshar [2005]?
Causation may be established even if the claimant cannot show they would never have had the procedure, where failure to warn deprived them of the chance to avoid the specific risk materialising.
Why is Chester v Afshar controversial?
It relaxes traditional causation principles and risks undermining doctrinal coherence.
How was Chester limited in Correia v University Hospital of North Staffordshire NHS Trust [2017]?
The Court held that Chester is confined to its facts and should not be widely applied.
Why was ‘loss of autonomy’ rejected as an independent claim
Because English law does not recognise loss of autonomy alone as actionable damage (Shaw v Kovac [2017]).
What statutory framework governs mental capacity?
The Mental Capacity Act 2005 (MCA).
What ethical justification underpins the doctrine of necessity?
The lesser of two evils, allowing treatment in the patient’s best interests when consent cannot be obtained.
What concern does Gunn raise regarding incapacity?
The law must set the correct threshold of capacity to both protect individuals and respect autonomy.
What presumption applies to adult mental capacity at common law?
Adults are presumed to have capacity despite mental disorder (Re C).
What test for capacity was articulated in Re C (Adult: Refusal of Treatment) [1994]?
Whether the patient can:
Comprehend and retain information
Believe the information
Weigh it to arrive at a decision
Why is Re C significant for autonomy?
It confirms that mental disorder alone does not negate capacity; understanding the decision is key.
How did Re MB (Caesarean section) [1997] refine capacity analysis?
Capacity is lacking where mental impairment (e.g. phobia) prevents decision-making, even temporarily.
What statutory question must be asked under ss 1–3 MCA?
Does the person lack capacity in relation to the specific decision at the relevant time?
What rights does a capacitous patient have?
The absolute right to refuse treatment for irrational reasons or no reason at all.
What protection does s5 MCA give to doctors?
A defence where the doctor reasonably believed the patient lacked capacity and acted in their best interests.
What institutional changes did the MCA introduce?
The Court of Protection and Public Guardian.
How does the MCA define incapacity?
Inability to make a decision due to impairment or disturbance of the mind or brain (s2).
How does the MCA regulate advance decisions?
It gives statutory recognition to advance decisions and independent mental capacity advocates.
What criminal offence does the MCA create?
Ill treatment or neglect of a person lacking capacity (s44).
What is the presumption of capacity?
A person must be assumed to have capacity unless established otherwise (s1(2)).
How does the MCA protect autonomy despite incapacity?
Unwise decisions do not equate to incapacity (s1(4)).
What governs decision-making for incapacitated patients?
Decisions must be in the person’s best interests (s1(5)).
What is the least restrictive principle?
Any act must restrict the person’s rights as little as possible (s1(6)).