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TABLE OF ABBREVIATIONS
AWIA- Adults with Incapacity (Scotland) Act
ECHR- European Convention on Human Rights
HRAHuman Rights Act
MCA Mental Capacity Act
NHS- National Health Service
Judicial reluctance to challenge "Clinical" decision-making prejudices
patients. It encourages a medicalised view of best interests and leave
to doctors decisions which are to ethical and social concern
1.0 Introduction
Whenever a clinical decision comes up for questioning in court, it is usually on
account of breach of professional duty of care or contravention of statutory
provisions. According to the 2011/12 Reports by the NHS Litigation Authority,
there has been a steady rise in clinical claims against NHS bodies over a period
of 3 years from the last report of 2010/11 year1. In the 2011/12 year alone,
there were 9,143 clinical claims representing a rise of 5.6% from the previous
year. The figures would of course be higher if non-NHS claims were to be
considered.
This unpalatable trend calls for interrogation of a number of legal issues relating
to the efficacy of clinical decisions. A key issue is how courts in England treat
claims that call into question clinical decisions. In particular, the discussion
1NHS Litigation Authority, Report and Accounts- 2011/2012 (NHS 2012)http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf accessed
12th August 2013
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critically analyses the legal, ethical and social concerns questions that courts
take into account in judging clinical decisions in respect of adult patients.
2.0
Contravention of statutory provisions
2.1 The laws
Statute in the UK has stepped in to regulate clinical decisions based on the
capacity of the patient to take choices in clinical decision relating to them as
well as the patients basic human rights2.
2.1.1
Capacity of the patient
In England and Wales the issue is governed by the Mental Capacity Act 2005,
(MCA) and in Scotland by the Adults with Incapacity (Scotland)Act 2000 (AWIA).
Capacity is determined based not just on age but also that persons
[ability] to make a decision for himself in relation to the matter because of an
impairment of, or a disturbance in the functioning of, the mind or brain.3
In the context of clinical decisions, these laws stipulate the criteria and procedures
to be followed in making decisions when a patient lacks capacity to make clinical
choices independently. They also provides for decision making by proxies or
representatives where the patient lacks capacity. The 5 guiding principles as set out
in MCA are:4-
- A patient is to be assumed to have capacity unless the contrary is proven
- Practical steps must be taken to assist a person make a decision
- All clinical decisions must be in the best interest of the patient
2General Medical Council Consent: Patients and Doctors Making Decisions Together(2013)http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp
accessed 18thAugust 2013
3Section 2 of MCA
4Section 1 of the Act
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- Unwise decisions is not synonymous to lack of capacity
- Clinical decisions must first consider availability of a less restrictive
alternative
Additionally under Section 44 of the MCA if a clinical decision or act amounts to ill-treatment or willful neglect, it is an offence punishable by imprisonment for a term
not exceeding 12 months or a fine not exceeding the statutory maximum or both5
Northern Ireland does not have a statute regulating this area of medical practice
but there is reliance on the common law principle that the clinical decisions must be
made in the best interest of the patient.
2.1.2 Human Rights of the Patient
In assessing clinical decisions there may also be considerations necessary under the
Human Rights Act, 1998 (HRA) which gave effect to the European Convention on
Human Rights (ECHR). The HRA has domesticated the following provisions of the
Convention which are of relevance to clinical decision making:
The right to life and positive duty on public authorities to protect life6.
The right to be free from inhuman and degrading treatment7.
The right to security of the person8.
The right to respect for private and family life9.
The right to freedom of thought, conscience and religion10.
5Section 44(3)(a)6Article 2
7Article 3
8Article 5
9Article 8
10Article 9
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The right to be free from discrimination in the enjoyment of these other
rights11.
2.2 Judicial Interpretation
2.2.1 General Rules on interpretation
Beyond the basic parameters set by the Interpretation Act 1978 in interpreting
statutes, including the foregoing clinical decision statutes, courts in England are
guided by four judicial rules i.e. the literal, golden, mischief and purposive approach
rules. Under the Literal rule the words in the statute are given are given their
ordinary meaning.12 The golden rule comes into play where the literal rule would
result in an absurdity i.e. the court gives a meaning that corrects the absurdity. 13
The mischief rule only applies where there is ambiguity in the statute14. It allows
court to interpret a provision in a manner that suppresses the wrong (mischief) that
the legislator had intended to cure15.
These rules have guided courts in England in interpreting a number of statutory
principles relating to clinical decisions. Some of the principles and how the courts
treated them is discussed below
2.2.2 The question of capacity
Whilst the Act states that the decision on capacity is to be made irrespective of age,
section 2(5) of the Act provides that the safeguards under the Act are only in
respect of a people aged 16 and over.
11Article 14
12Fisher v Bell [1961] 1 QB 394
13Adler v George [1964] 2 QB 7
14Re Sussex Peerage[1844]EngR 822
15 Royal College of Nursing v DHSS [1981] 2 WLR 279
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The pre-eminence of capacity was underscored in the case of W Healthcare NHS
Trust vs. H16where a 59 year old lady had many years earlier made statements
indicating that she did not want life support treatment as well as other forms of
treatment . When she suffered a critical condition of multiple sclerosis and hence
lost capacity, the court upheld her capacity-days resolve not to be put on life
support17.
In another case ofAn Hospital NHS Trust v S18 the court pointed out that the
inability to understand the nature of a form of treatment was not a ground for
incapacitation. In this case an 18 year old autistic patient was to undergo peritoneal
dialysis. The hospital however moved to court to be exempted from the treatment
arguing that in his condition the patient did not understand and would not
cooperate with the treatment. The court held that just because someone did not
understand a form of treatment did not mean they werent entitled to it.
2.2.3 Interpretation of Best Interest in clinical Decision
Section 1(5) of the MCA requires that a clinical decision taken for or on behalf of a
person who lacks capacity must be done, or made, in his best interests. In the case
of An NHS Trust vs. Ms D19 a hospital approached court seeking declarations that
Ms D (a 32 year old Patient) who was suffering from a terminal condition known as
mitochondrial cytopathy lacked capacity to make decisions regarding her future and
in particular the nature of her medical treatment. The claim also sought a
declaratory order that it was not in the best interest of the patient to continue
receiving further treatment to prolong her life. The family disagreed.
16[2005] 1WLR 834
17 However note that the court permitted a general treatment by artificial nutrition and
hydration which the hospital argued were not covered by her earlier declarations
18[2003] EWHC 365 (Fam)
19[2005] EWHC 2439 (Fam)
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The court following previous decisions in NHS Trust v Wyatt20andR v- GMC and
others21noted that the key considerations in such a case included issues of human
dignity and sanctity of life. It was however noted that the two are not always
compatible and that what is in the best interest goes beyond medical considerations
to issues such as welfare and emotional issues. The court had to balance the
benefits or disbenefits, advantages or disadvantages to Ms D if the orders sought
were to be granted. The court stating that focus of best interest should be on the
patient and not the wishes of the family saw no benefit of prolonging the patients
life if she was to die in a few days. This is known as the balance sheet approach in
ascertaining the best interest of the patient22.
2.2.4 Sanctity of life consideration
where a clinical decision goes to the very life of the patient e.g. in case of
euthanasia, the court have upheld the sanctity of life and stated that the intention
of the decided treatment must not be to end life but to alleviate pain and suffering.
This was the position in the case of R vs. Cox23 where a rheumatologist,
administered potassium chloride, a lethal substance with no analgesic or
therapeutic effect, to a terminally ill woman of 70. He was charged with murder and
his defence was that he had intended to end the patients suffering.However his
prescription for the treatment led to the conclusion that his intention was otherwisehence he was convicted.
20[2004] EWHC 2247 (Fam)
21[2004] EWHC 1879 (Admin)
22Theresa Joyce, Guidance on Determining the best Interests of Adults who Lack theCapacity to Make a Decision (or Decisions) for Themselves [England and Wales] (British
Psychological Society, 2007)
http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdfaccessed 18th August 2013
2312 BMLR 38
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In the case of Airedale NHS vs. Bland24 the court had to among other things
determine whether a clinical decision to withdraw feeding tube treatment to prolong
life of an accident patient amounted to an act leading to death which is unlawful.
The court found that it was not since the feeding tube was a medical treatment and
it would be proper to withdraw it if there was no chance that the patient would get
better.
2.2.5 Alternative Treatment
In the case of Re Ms B vs. NHS Hospital Trust25 the court held that doctors are
under an obligation to respect the refusal of treatment by an adult with capacity
and to find alternative treatment to meet the patients wishes. This is in congruence
with the requirement of Section 1(6) of the MCA.
2.3 Tendency by courts to uphold the clinical decisions
Majority of court judgments relating to clinical decision appear to give clinical
professionals an upper hand. For instance it was apparent in Re A (Male
Sterilization)26that where the court is asked to decide on withholding or withdrawing
a treatment, it will mostly take into account the opinion of a responsible medical
body of opinion. In another case of Re G (Persistent Vegetative State)27 the court
concluded that ultimately the responsibility to decide which treatment is clinically
indicated and should be administered rests with the doctor.
These court decisions and the others discussed above where there is qualification of
sanctity to life to be tempered with quality and dignity of life as well as the need for
24[1993] 1 All ER 821
25[2002] EWHC 429 (Fam)
26[2000] FCR 193; See also Re S (Adult Sterilization) [2000] 2FLR 389 and health andSocial Services Trust vs. PM & Anor [2007] NIFam 13 (21stDecember 2007)
27[1995] 2 FCR 46
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specificity in a previous declaration of unwanted treatment are all indicative of the
classical position held by courts in England on the test of professional duty of care
in medical treatment. The position emanated from the case of Bolam vs. Friern
Hospital Management Committee28(the Bolam principle) is discussed in detail below
under the second consideration in clinical decisions- the professional duty of care.
3.0 Breach of Duty of care
3.1 General rule
Clinical negligence falls in the pigeon-hole of tort law (delict in Scotland) or
generally breach of a duty of care29. The allocation of liability in this area of law
is generally outlined in the classical case of Donoghue vs. Stevenson30where
lord Atkinson stated in part that
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, inlaw, is my neighbour? The answer seems to be persons who are so closely
and directly affected by my act that I ought reasonably to have them incontemplation as being so affected when I am directing my mind to the acts
or omissions which are called in question
Proof of a claim in negligence therefore has three key elements; the existence of
a duty of care, an act or omission which amounts to breach of that duty and
harm arising from the breach.
The exact level and nature of application of this test depends on the
circumstances of the case. It is for this reason that courts in England while
guided by the general rule, often have slightly varied considerations where the
negligent act or omission was committed in line of professional duty; i.e.
professional negligence which includes clinical negligence.
28[1957] 1 WLR 582
29Daniel Bryden, Ian Storey Duty of Care and Medical Negligence(2011) 11 (4) Continuing
Education in Anaesthesia, Critical Care & Painhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlaccessed 13thAugust 2013
30[1932] UKHL 100
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3.2 Professional negligence and how it varies from the general rule
In adjudging an impugned professional decision, courts deem professionals to be
under the duty to act both with care and skill31
. Where a professional is involvedthe duty is deemed to included an implied (where not express) duty to serve
with skill.32The scope of the professional duty was outline in Midland Bank Trust
Co. v Hett, Stubbs and Kemp33 where the court stated;
The classical formulation of the claim in this sort of case as 'damages for
negligence and breach of professional duty' tends to be a mesmeric phrase.
It concentrates attention on the implied obligation to devote to the client'sbusiness that reasonable care and skill as if that obligation were not only a
compendious, but also an exhaustive, definition of all the duties assumed
under the contract created by the retainer and its acceptance. But, of course,
it is not. A contract gives rise to a complex of rights and duties of which theduty to exercise reasonable care and skill is but one
In the absence of expressly contractual or statutory provision the skill in
question is to be assessed on the test of reasonableness. For instance in Edward
Wong Finance Co. Ltd. v Johnson Stokes & Master34, a firm of solicitors had
completed a mortgage transaction in "Hong Kong style" rather than in the
English style. According to the court even though this style was almost
universally adopted in Hong Kong did not make it reasonable or responsible
since it failed to guard against the risk of fraud. Thus, the solicitors were liable
for negligence because they should have reasonably taken precautions against
an obvious risk.
31John L Powell QC, Professional Negligence: The Changing Coastline Of Liability
www.4newsquare.com/Files/PDF/Article/JP%20article.doc accessed 17thAugust 2013
32Ibid
33[1979] Ch. 384 at 434
34(1984) 1 AC 296
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A decision of the House of Lords in Bolitho v City and Hackney Health
Authority35is however indicative of a more lenient treatment of professionals by
courts when it comes to medical negligence. In the case, a doctor failed to
attend to a patient delegated the care of the patient to her junior (another
doctor). The junior too did not attend to the patient leading to complications and
death of the patient. The Court, persuaded by the Bolam principles36held that a
judge is seldom right to reach a conclusion that the views genuinely held by a
competent medical expert are unreasonable. This leads us to a discussion on
what the Bolam principles entail and what it means in respect of clinical
decisions which are challenged on the basis of breach of duty of care.
4.0 Bolam Principles in respect of Medical/Clinical Duty of Care
4.1 Background
Bolam vs. Friern Hospital Management Committee37 was a 1957 case Mr. Bolam
was a patient at a mental health institution run by the Friern Hospital Management
Committee. He agreed to undergo an electro-convulsive therapy. However during
the procedure the doctors did not administer on him any muscle relaxant nor was
his body restrained. Consequently his body flailed and convulsed during the
operation thereby causing him body injuries and fractures. In his claim against the
hospital, he argued that the hospital had been negligent in failing to take the
precautionary measures and not warning him of the potential risks.
The claim was dismissed on account of the fact that medical opinion tendered
during the hearing, at that time the hospital had acted within acceptable
parameters of medical electro-shock practice. Specifically McNair J stated in part
that a medical practitioner would not be held negligent if he;
35(1997) 4 AER 771
36From the Bolam caseabove n2837[1957] 1 WLR 582
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has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art. I do not think there is
much difference in sense. It is just a different way of expressing the same
thought. Putting it the other way round, a man is not negligent, if he is
acting in accordance with such a practice, merely because there is a body of
opinion who would take a contrary view.
4.2 Endorsement of the Bolam principle
The decision subsequently became the yard stick for most claims in medical
negligence where clinical decisions are called into question. It was endorsed in
among other decisions in Maynard v West Midlands Health Authority38where Lord
Scarman stated that where the acts of a practitioner whose actions have received
the seal of a professional body, it is not open for a judge to make a finding of
negligence merely because of the existence of contrary opinion from another
professional body.
It has also guided the decisions of court where opinion is divided. For instance in
Hucks v Cole39 , a doctor failed to treat a patient who was suffering from septic
places on her skin with penicillin even though he knew there was a risk of puerperal
fever. Evidence tendered in court revealed that there was conflict of medical opinion
on the propriety of the doctors omission. Sachs LJseeing a potential lacuna in the
area of medical practice stated that
When the evidence shows that a lacuna in professional practice exists by whichrisks of grave danger are knowingly taken, then, however small the risk, the
court must anxiously examine that lacunaparticularly if the risk can be easily
and inexpensively avoided. If the court finds, on an analysis of the reasons givenfor not taking those precautions that, in the light of current professional
knowledge, there is no proper basis for the lacuna, and that it is definitely not
reasonable that those risks should have been taken, its function is to state thatfact and where necessary to state that it constitutes negligence. In such a casethe practice will no doubt thereafter be altered to the benefit of patients."
4.3
The problem with Bolam
4.3.1 The criticism
38[1985] 1 All ER 635
39(1993) 4 Med. L.R. 393
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Over time though the Bolam test has come under criticism and has led to a number
of dissenting decisions.40 Key among these is the perception that Bolam permits
medical practitioners to set their own standards. Under the principle what ought to
be done is that which a body of medical practitioners says is done in the practice.
While this may be the appropriate approach in matters involving technical medical
consideration such as proper diagnosis it may be handicap where the matter in
question is of pure conduct e.g. information disclosure or processes f or obtaining
consent to a clinical decision41. Some authors have argued that such matters
should be left to the determination of courts own assessment and not a body of
medical persons42
4.3.2 Should issues of disclosure and information to a patient be a matter of
professional consideration
The first key case to signal a move away from Bolam was Sidaway v Board of
Governors of the Bethlem Royal Hospital43 in this case a neurosurgeon took a
patients consent for cervical cord decompression, but did not did not disclose the
fact that in less than 1% of the cases, the operation caused paraplegia. She
developed paraplegia after the spinal operation and sued in a clinical negligence
claim premised on non-disclosure. While the majority of the House of Lords held
that the quantum of disclosure was a matter of clinical judgment, Lord Bridge in
dissenting opinion stated as follows;
Whether non disclosure in a particular case should be condemned as a breachof the doctors duty of care is an issue to be decided primarily on the basis of
expert medical evidence, applying the Bolam test.
40Ash Samanta, Jo Samata, Legal Standard of Care: A Shift from the Traditional BolamTestwww.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdf accessed 20th August
2013
41Ibid
42Teff H. The standard of care in medical negligence moving on from Bolam? (1998) 18Oxford J Legal Studies;
43[1985] 1 All ER 643
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This failing of Bolam appears to have been cured by the requirement of Section
1(3) of the MCA which requires that a person is not to be treated as unable to
make a decision unless all practicable steps to help him to do so have been taken
without success. Assistance to a patient to take a decision may be in a wide sense
be interpreted to have the same meaning as the principle of informed consent
known to American law. In a 1972 California case of Canterbury v Spence44 the
claimant, a 19 year old patient consulted the doctor because of severe pain
between his shoulder blades and was advised to undergo surgery after a
myelogram showed distortion of the thoracic vertebrae. Before the procedure, the
patient did not ask any questions the proposed treatment. After the operation he
suffered incontinence and had difficulty in walking. He sued the doctor in negligenceand the judge stated
The patients right of self decision shapes the boundaries of the duty to
reveal. That right can be effectively exercised only if the patient possessesenough information to enable an intelligent choice. The scope of thephysicians communications to the patient, then, must be measured by the
patients need, and that need is the information material to the decision.
4.3.3 Is Bolam applicable to ethical questions
The Decision in Re F45 is among the cases that shows the deficiency of Bolam in
ethical issues. The issues in the case was whether sterilization should be performed
in a 36-year-old patient who had a mental age of five. Following the rule in Bolam,
the Court held that a medical practitioner
can lawfully operate on, or give other treatment to, adult patients who areincapable, for one reason or another, of consentingprovided that the
operation or other treatment concerned is in the best interests of such
patients
To this end Bolam has been criticized for elevating the role of doctors in making
clinical decision to that of a moral arbiter46. It is seen as placing undue reliance on
44464 F.2d 772 (D.C. Cir. 1972).45Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
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medical testimony so much so that it defeats the very essence of the best interest
of the patient. There has therefore been call to subject clinical decisions, acts and
omissions to the traditional reasonable standard of care and that it should be left to
the court to define what is reasonable47.
4.3.4 Revision of the position by Bolitho v City & Hackney Health Authority48
In the dispute the patient had suffered catastrophic brain damage as a result of
cardiac arrest caused by respiratory failure. The hospitals senior registrar did not
attend the patient. In her defence as she held the view that that medicalintervention, under those particular circumstances, would have made no difference
to the end result any way. This view was supported by the opinion of renowned
body of medical professionals. Lord Brwone-Wilkinson in allowing the claim, went
beyond the stipulation in Bolam and held that noted that
In particular, in cases involving, as they so often do, the weighing of risks
against benefits, the judge before accepting a body of opinion as being
responsible, reasonable or respectable, will need to be satisfied that, in
forming their views, the experts have directed their minds to the question ofcomparative risks and benefits and have reached a defensible conclusion on
the matter
Bolitho therefore propounded a two tiered process in application of Bolam. First
step which is largely consistent with Bolam as set out is to consider whether the
clinical decision taken has any professional backing from a body of recognised
practitioners in the area of medicine. The second step is to satisfy the court that
such professional opinion relied on takes into account a risk analysis or the balance
sheet assessment of the best interest of the patient. This later stage provides an
46Teff H, above n41
47Samanta, above 39
48[1997] 4 All ER 771
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avenue for consideration of ethical and social concerns that arise from clinical
decisions.
4.3.5 Endorsement of Bolitho
The case of Penney, Palmer and Canon v East Kent Health Authority49is among the
cases that appear to have adopted the thinking in Bolitho. The case involved an
error in a syto-screen which showed that the patients did not have cervical cancer
yet subsequently they developed the cancer. The trial judge discredited the expert
evidence tendered stating that they had anomalies since taking into account the
potentially disastrous consequences of a mistaken identification, a reasonably
competent cyto-screener would have classified the smear as borderline
Here the judge was addressing itself to more than just what the experts would say.
He went beyondwhat is done and addressed himself to what ought to be done.
Needless to say, on appeal, the court of appeal upheld his decision and restated
Bolitho as follows
In resolving conflicts of expert evidence, the judge remains the judge; he is
not obliged to accept evidence simply because it comes from an illustrioussource; he can take account of demonstrated partisanship and lack ofobjectivity
Marriott v West Midlands Health Authority 50was a further endorsement of this new
approach that insists on a risk analysis of the position defended by a body of
experts. The pursuer in this case suffered head injuries after a fall and was taken
to hospital for investigations, and was discharged. However, at home his condition
worsened. It turns out he had suffered an intracranial bleeding which the GP did not
take account of. The injury led to residual paralysis and a resulting speech disorder.
49[2000] Lloyds Rep Med 41
50[1999] Lloyds Rep Med 23
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The defendant through expert witnesses tried to show that the decision to leave the
plaintiff at home could be supported on the grounds that the risk of an intracranial
lesion was negligible. The trial judge, finding for the plaintiff, said that although the
risk was very small,
The consequences of things going wrong are disastrous to the patient. In suchcircumstances, it is my view that the only reasonably prudent course [would be] to readmit for further testing and observation.
The judge even pointed out that that a readmission of the patient would have been
appropriate as facilities for further investigation were relatively easily available. The
Court of Appeal readily approved of this decision on the basis of an appropriate
judicial exercise in determining the required standard of care by using the risk
analysis approach of Bolitho.
5.0 Conclusion
The discussion hereinabove presents what may be summarized as a debate on how
courts in England in the exercise of their jurisdiction should treat clinical decisions
said to be founded on medical practice. The assessment has to be done by courts
one way or the other when dealing with cases relating to breach of statutory
provisions on medical consent or claims in medical negligence arising from clinical
decisions in respect of adult patients. Put another way, should courts take medical
expert view as being absolute in adjudging the propriety of clinical decisions?
There are two divergent case law propositions on this issue. The classical position
propounded in Bolam vs. Friern Hospital Management Committee51 appears to
suggest that the court should be satisfied with an explanation given for any
impugned clinical decision provided it is supported by the expert opinion of a
recognised medical body. This view however has a couple of key failings; first it
overlooks the fact that not all clinical decisions can be tied to technical expertise of
medical practitioners. An example is the failure to grant adequate information
51[1957] 1 WLR 582
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regarding an operation. The approach also unduly renders expert medical expert
opinion infallible and free of any ethical and social concern considerations.
The second view which corrects the position is evident in the case of Bolitho v City
& Hackney Health Authority52
which mandates the court to question the riskanalysis of a position said to be supported by medical expert opinion. It allows the
court to freely take into account ethical and social concern issues which are
contained under the umbrella of the best interest of the patient. It perfectly fits into
the formulation in NHS Trust v Wyatt of welfare and emotional issues as being
additional considerations in determining what is in the best interest of a patient.
It follows that while court adjudication of clinical decisions in England has over
time been subjected to the medicalised formulation founded on the Bolam case,developments in law has since shifted the position. Pursuant to the risk
assessment proposition in the Bolitho Caseand the provisions of Section 1(5) on
the MCA on the best interests of the patient, it is open to courts to take into
account ethical and social concerns surrounding clinical decisions.
52[1997] 4 All ER 771
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BIBLIOGRAPHY
Statutes
Adults with Incapacity (Scotland) Act 2000
Human Rights (England) Act, 1998
Interpretation (England) Act1978
Mental Capacity (England) Act 2005
Case Law
Adler v George [1964] 2 QB 7
Airedale NHS vs. Bland [1993] 1 All ER 821
An Hospital NHS Trust v S [2003] EWHC 365 (Fam)
An NHS Trust vs. Ms D [2005] EWHC 2439 (Fam)
Bolam vs. Friern Hospital Management Committee [1957] 1 WLR 582
Bolitho v City and Hackney Health Authority(1997) 4 AER 771
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Canterbury v Spence464 F.2d 772 (D.C. Cir. 1972).
Donoghue vs. Stevenson [1932] UKHL 100
Edward Wong Finance Co. Ltd. v Johnson Stokes & Master(1984) 1 AC 296
Fisher v Bell [1961] 1 QB 394
Health and Social Services Trust vs. PM & Anor [2007] NIFam 13 (21stDecember 2007)
Hucks v Cole (1993) 4 Med. L.R. 393
Marriott v West Midlands Health Authority [1999] Lloyds Rep Med 23
Maynard v West Midlands Health Authority [1985] 1 All ER 635
Midland Bank Trust Co. v Hett, Stubbs and Kemp [1979] Ch. 384 at 434
Penney, Palmer and Canon v East Kent Health Authority [2000] Lloyds Rep Med 41
R vs. Cox 12 BMLR 38
R v- GMC and others [2004] EWHC 1879 (Admin)
Re A (Male Sterilization)[2000] FCR 193
Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
Re G (Persistent Vegetative State)[1995] 2 FCR 46
Re Ms B vs. NHS Hospital Trust [2002] EWHC 429 (Fam)
Re Sussex Peerage[1844]EngR 822
Royal College of Nursing v DHSS [1981] 2 WLR 279
Re S (Adult Sterilization) [2000] 2FLR 389
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All ER 643
W Healthcare NHS Trust vs. H [2005] 1WLR 834
Conventions
http://www.bailii.org/uk/cases/UKHL/1980/10.htmlhttp://www.bailii.org/uk/cases/UKHL/1980/10.html -
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Convention for the Protection of Human Rights and Fundamental Freedoms(European Convention on Human Rights, as amended) (ECHR)
Government Publications
NHS Litigation Authority, Report and Accounts- 2011/2012 (NHS 2012)http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf accessed
12th August 2013
Books
Articles
Bryden D., Ian Storey Duty of Care and Medical Negligence(2011) 11 (4) ContinuingEducation in Anaesthesia, Critical Care & Painhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlaccessed 13
thAugust 2013
Powell J, Professional Negligence: The Changing Coastline Of Liabilitywww.4newsquare.com/Files/PDF/Article/JP%20article.doc accessed 17thAugust 2013
Samanta A., Samata J., Legal Standard of Care: A Shift from the Traditional Bolam Test
www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdf accessed 20th August 2013
Teff H. The standard of care in medical negligence moving on from Bolam? (1998)18Oxford J Legal Studies
Theresa J., Guidance on Determining the best Interests of Adults who Lack the Capacity toMake a Decision (or Decisions) for Themselves [England and Wales] (British Psychological
Society, 2007)http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf
accessed 18th August 2013
Others
General Medical Council Consent: Patients and Doctors Making Decisions Together (2013)
http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp accessed18thAugust 2013
http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdfhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://www.4newsquare.com/Files/PDF/Article/JP%20article.dochttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.4newsquare.com/Files/PDF/Article/JP%20article.dochttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf -
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