Consent

Question 1

Tabassum

Answer 1

Unqualified gynaecologist case:
- Indecent assault because patients were unaware of the ‘doctor’s’ lack of qualifications

Question 2

Richardson

Answer 2

Unlicensed dentist case:
- Not battery because the doctor was still a qualified doctor - just unlicensed

Question 3

Chatterton

Answer 3

Not a battery if the patient has been advised of the risks in broad terms

Question 4

Bolam

Answer 4

Paternalistic
- Not guilty of negligence if acted in accordance with a practice accepted by a reasonable body of medical expertise

Question 5

Sidaway

Answer 5

Majority:
- Applied Bolam

Obiter - Lord Scarman:
- Reasonably prudent patient test
ie, must disclose any risks that a reasonable person in the patient’s shoes would consider significant to their decision

Question 6

Bolitho

Answer 6

Note:
- Still standard in general medical negligence claims (ie, doc fucks up)

Less Paternalistic 1
- Opinion given by a body of medical opinion must be capable of withstanding logical analysis

Question 7

Pearce

Answer 7

Less Paternalistic 2
- Doctor must disclose any risk that would affect the judgment of a reasonable patient

Question 8

Chester (evolution)

Answer 8

Less Paternalistic 3
- Doctor must disclose any risk no matter how slight

Question 9

Birch

Answer 9

Less Paternalistic 4
- No informed consent if the patient has not been informed of alternative treatments

Question 10

Montgomery (TEST)

Answer 10

Test of Materiality:
- Doctor ensure the patient is aware of any material risks and any alternative treatments
- A risk is material if:
- Reasonable person in patient’s
shoes would attach significance
to it
- Doctor is reasonably aware that
the specific patient would attach
significance to it

Question 11

Montgomery (For/Against)

Answer 11

For
- Heywood and GMC:
Brings the law up to date with GMC guidelines (partnership model of decision making)

Against
- Royal College of Surgeons
Floodgates concern (has not eventuated)

• Montgomery and Montgomery
  1. Infantilises patient & Demonises doctor (ie, misconstrues facts)
  2. Discourages doctors from following NICE guidelines (ie, cannot avoid liability by following them)
  3. Compartmentalises doctor’s job into diagnosis/treatment & disclosure of risk (Lady Hale: expert clinicians do not compartmentalise these aspects of the role)

Question 12

FM

Answer 12

Causation (disclosure of information)
- Whether the patient would have opted for alternative treatment

Question 13

Chester (causation)

Answer 13

Causation (disclosure of information)
- Only have to show that the patient would have not have had the treatment at that specific point in time

Question 14

Montgomery (understanding)

Answer 14

Doctor must take reasonable steps to ensure the patient understands the information

Question 15

Lybert

Answer 15

Risks must be disclosed before the treatment is provided

Question 16

Duce & McCulloch

Answer 16

Advising of alternatives:
- McCulloch affirms the 2 stage test in Duce:
1. Of all possible alternative treatments, which alternative treatments are reasonable?
2. Has the patient been informed of these alternatives?

Commentary:
- Step 1 = a judgment back to medical opinion
- Narrows scope of Montgomery
- Reverting to paternalism in cases where ‘advising on alternative treatment’