Medical negligence: Minor patients & consent

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8 word format

document in English

medical studies

case study

published 25/09/2008

review : Completed

level : Advanced

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Summary

Modern legal and ethical requirements have significantly impacted doctors’ approach to patient involvement in decisions in relation to treatment with a “discernible tendency to overload the information dumped upon patients about infinitesimal risks until the unhappy souls are either scared out of their wits or disregard the lot as incomprehensible mumbo-jumbo ”. Legal concepts of consent within the ambit of medical ethics establish three fundamental elements of proper consent. Academic reasoning propounds that the fundamental purpose of obtaining patient consent to a specified treatment is to protect doctors against committing an actionable tort of battery. Lord Donaldson emphasised this justification in Re W (a minor) adopting the analogy of a legal “flak jacket”, which protects doctors from litigious claims and sanctions their right to proceed with treatment without litigious consequences. In highlighting the legal purpose of consent as operating as a “flak-jacket”; Lord Donaldson also pointed out the clinical purpose of consent, which is essential to efficacious medical practice.

Key Words: Medical negligence, patient consent, minor patient, parental rights, consent, valid consent, Gillick competence, Vicarious Liability, Human Rights, ECHR, Human Rights Act 1998.

Scenario.
Introduction.
Consent.
1. Human rights issues in consent.
2. Peter's right to refuse treatment.
3. Peter's mother and refusal to consent.
4. Right of Peter's father to override the refusal.
Consideration of Trust's position outside the ambit of consent.