RISK MANAGEMENT Medical Law Clinical Negligence Hani Azri
- Slides: 11
RISK MANAGEMENT Medical Law Clinical Negligence Hani Azri – LLB Scholar BPP University College Law School London
Summary � � � Medical Law overview Clinical Negligence The Duty of Care Bolam test & Bolitho Standard of care ; important case law Consent
Medical Law Overview � � An amalgam of various law : criminal, civil, European, administrative etc. . . Includes: � Bioethics � Clinical Negligence � Resources Allocation � Consent � Reproduction, Contraception Liability before birth, Abortion & Termination � Organ Donation, transplantation, death & dying
Clinical Negligence � CN refers to professional malpractice within the medical field. � Type of Action: � Criminal � Civil � Regulatory
Clinical Negligence � � � Why ? Increased knowledge of patients (internet, rights/law) Increased pressure on Doctors…. . Legal Aid … “no win no fees lawyers” Influence from other countries
The Duty of Care � � � R v Bateman Cassidy v Ministry of Health Barnett v Chelsea & Ken. Hospital Bull v Devon AHA Prendergast v Sam & Dee
Bolam Test 1957 � Main test: Bolam v Friern H. M. C per Mc. Nair J � CN claims have 70 % chance of failure! Non clinical Negligence claims have 70% chance of success! Critics: � � � Too generous toward doctors � Choice between different medical opinion � Deviation from standard professional practice � How should a body of medical professional should be determined ?
Bolitho 1997 � Court can find a body of professional doctors illogical.
Breach/Standard of care � � � � Standard practice : NICE, NHS trust etc. . . A reasonable Body ? Defreitas v O’brien 11/1000 Differing opinions : Maynard v W. Midlands R. H. A Error of judgement : Whitehouse v Jordan Level of skill: Shakoor v Situ State of the art defence: Crawford v Charing Cross Hospital Level of Risk/information: Sidaway v Board of Governors of BRH � Pearce v United Bristol HC NHS Trust � Chester v Ashraf (2004) �
Consent � � � Consent : genuine agreement to treatment Can be decided by patients, by proxy, by the court or by necessity. Requirements: � � patient is competent Patient is sufficiently informed: Dept of Health Code: Good Practice in Consent (2001) GMC Code of Practice � � � Consent is totally voluntary Re T (Jehovah Witness) Insufficient information can lead to : Criminal liabilities : R v Tabaussum (2005) OR � Negligence : � � � in not informing the patient of all relevant information: Sidaway v Bethlem HMC Patient who ask about their treatment Not sufficiently warned about the risks : Roger v Withaker Chester v Ashraf
What is a “Reasonably Competent Doctor” ? Bolam test: “as long as another body agree on the treatment” Bolitho: “ the court can decide that the body is illogical” Risks and information given to patient: “ sufficient ? “ 1 -2 % Patients request for all information: “all information should be given unless emotionally distress” Principalism : patient’s autonomy (right to refuse treatment), Beneficence, no malfeasance, Justice (no discrimination).
