Health Law and Practice - Essay Example

Health Law and Practice Introduction “It would appear that no patient has the absolute right for a comprehensive andtruthful answer to a specific request in circumstances where a responsible body of medical opinion would properly contend the patient was unentitled to an honest reply”. The accuracy of this statement in relation to the law in England and Wales may be a question that elicits serious debates from people with varying view points. This paper will use the law in England and Wales to discuss the accuracy of the above given statement. On one hand, the law stipulates that it is the duty of health care providers to give information to their patients when obtaining consent and also warn them of any possible risks that are likely to be encountered during the treatment or medical procedure. On the other hand, the quantity of information to disclose, and the truthfulness of that information is also a factor to consider as much as a health care provider is required to give out information to patients. The statement under scrutiny in this paper can be dissected in a myriad of ways. It is imperative to point out that in relation to the law in England and Wales, it is the duty of health care providers to care for their patients. This was clearly stated by the House of Lords by Lord Diplock in the Sidaway v Bethlem Royal Hospital case of 1985. According to Lord Diplock, “A single comprehensive duty covering all the ways in which you are called on to exercise skill and judgment in the improvement of the physical and mental condition of the patient.” (Sidaway v Bethlem Royal Hospital 1985). The law in England and Wales also clearly stipulates that it is the duty of the health care provider, while caring for a patient, to clearly advice a patient and disclose all pertinent information that will permit the patient to come up with good decisions based on the nature of care being given (Hills v Potter 1983). However, the law is not quite clear on the distinction that should exist between therapeutic and non-therapeutic contexts. Most of the famous cases that are related to the topic in question reveal just how difficult it is for one to know just how much information to reveal to a patient. This difficulty arises from the fact that it is not very clear whether very inquisitive and curious patients should be told more than needs to be told. Another issue that causes this difficulty lies in the fact that the law is not comprehensible on whether the health care provider has the discretion to distort or withhold information. Lastly, the issue of therapeutic and non-therapeutic circumstances mentioned above also contributes to the difficulty in knowing just how much information to reveal to a patient. A review of the Hatcher v Black case of 1954 can explain this point further. In the case, the patient consented to partial thyroidectomy proposed by the doctor. The patient was not made aware of the slight risks that could have her voice permanently impaired. In fact, the facts of the case reveal that the patient was told that there were no risks at all. After the operation, her vocal cord became paralysed. In the summary given to the jury by Lord Denning, the pertinent question of what a doctor should tell a patient was very conspicuous. The doctor admitted that despite knowing the slight risk that existed, he told the patient before the procedure that there was no risk. The doctor was quick to add that he did this for the patient’s own good. The doctor did not want to have his patient worry because this would be detrimental to her overall wellbeing. In fact, the doctor said that the circumstances under which he did this were justifiable. The issue that arises here is that law does not say that the doctor was wrong in doing what he did under such circumstances. Several doctors were called as witnesses, and none of them felt that the doctor was wrong in what he did under the given circumstances. For these reasons, Lord Denning saw no reason to condemn the doctor (Hatcher v Black 1954). This case proves the accuracy of the statement in question. Two areas of the law in England, namely the law of negligence and the law of trespass, form the basis of the duty of health care providers to give out information to the patients. According to the law of trespass, for consent to be effective or real, should have used broad terms to explain the nature of treatment to a patient. The threshold of information that should be disclosed under the law of threshold is very low since all that counts is whether the doctor has basically given the broad nature of the reason why he or she intends to touch a patient. A good example is when a doctor tells a patient that he or she is going to give him/her an injection to deal with the pain. In such a case, no cause of action in regard to trespass can crop up. A real life example to explain this scenario is the case of Chatterton v Gerson [1981]. In this case, the woman in question claimed that the surgeon had not told her of the risks that she was prone to if she underwent the surgical procedure. She felt that a real or effective consent had not been obtained from her, thus, that was trespass. According to the court, this was not true because, as long as the doctor had used broad terms to explain the nature of the procedure, and the patient gave her consent, the consent is considered real and effective. If the woman felt that the doctor failed to go to mention the risks, it would be dealt with under the law of negligence, not trespass. Trespass would only have arisen if there was no consent from the patient, or if the doctor carried out a different procedure from what the patient was told, or where fraudulent means were used to obtain the consent. This case also supports the assumption made by the statement in question that “It would appear that no patient has the absolute right for a comprehensive and truthful answer to a specific request in circumstances where a responsible body of medical opinion would properly contend the patient was unentitled to an honest reply”. A good example to explain trespass is the case of Potts v NWRHA [1983] where the patient was given the contraceptive depo-provera whereas she was made to believe that she was undergoing a regular postnatal vaccination. A doctor giving false information to a patient amounts to trespass, even if consent was given. In regard to the law of negligence, not only are health care providers required to explain procedures in broad terms, but also warn their patients of any possible risks that may arise as a result of procedure that is to be given. If a health care provide fails to warn a patient of the potential risks, this is considered as negligence and the health care provider is considered to have failed to care for the health of the patient. Reference will be made to the Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] because a health care provider needs to cautiously reflect on the information that needs to be known by a patient. On one hand, it is the duty of a doctor to advise a patient of the potential risks that may arise from a procedure or proposed treatment. It is also the duty of the health care provider to withhold information if giving that information would potentially scare the patient yet the chances of then risks occurring are very minimal (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital 1985). The words of Lord Denning to the jury as mentioned above have been used as the basis in a number of cases that followed the Hatcher v Black [1954] case. For example, in the Bolam v Friern Hospital Management Committee [1957] case, the medical standard of care was formulated when it was decided that, “a failure to warn a plaintiff of a slight risk of a fracture occurring during the administration of an ECT was held not to have been negligent because it accorded with a practice adopted by a responsible body of medical opinion” (Bolam v Friern Hospital Management Committee 1957). It is from this case that the medical standard of care was formulated. In cases that have to do with disclosure of information, what is checked is whether the quantity and quality of information that is given to a patient is in harmony with the practice adopted by either the profession as a whole or any responsible body of opinion within it (Bolam v Friern Hospital Management Committee 1957). This has commonly been referred to as the Bolam test where the views of a responsible and professional body of fellow professionals in the field have been respected. In regard to the statement in question, the amount of information to disclose has also been an issue of major concern. In the Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] case, the House of Lords seriously considered the standards that should be followed by a health care practitioner when warning a patient of the potential risks that can arise from a procedure or treatment plan. In this particular case, a woman suffering from pain underwent surgery after signing a consent form. The risks occurred and the woman sued, claiming that she would not have signed the consent form if she was made aware of the risks involved. The medical standard of care adopted after the Bolam v Friern Hospital Management Committee [1957] case is what saved the doctor from liability. The Bolam test revealed that the doctor had not violated the general standard of medical care. The act of the doctor was in accordance with a practice that was approved by a renowned body of fellow medical professionals. This was especially because, in this case, the risk was not more than 1%. In such a case, it is an accepted practice not to disclose the risks to a patient so that they do not worry unnecessarily (Bolam v Friern Hospital Management Committee 1957). The professional medical standard of care has since been used as the basis of determining the quality and amount of information that a patient should be given in regard to the potential risks that may arise due to a procedure or treatment option. Conclusion In summary, the accuracy of whether it would appear that no patient has the absolute right for a comprehensive and truthful answer to a specific request in circumstances where a responsible body of medical opinion would properly contend the patient was unentitled to an honest reply is very high. With specific reference to the law in England and Wales that has been made throughout this paper, the numerous examples prove that no patient is fully entitled to be given full and true information to some requests if a responsible body of professionals in the medical field are of the opinion that the patient does not deserve that information. Health care providers are required to consider a number of factors when deciding what information to give a patient concerning the risks involved with a certain medical procedure or treatment plan. These factors include the accepted norms in what risks need to be disclosed to patients, the seriousness of the harm if the risk is to occur, the chances of the risk occurring, the risks themselves, the nature of the treatment or procedure, the questions raised by the patient regarding the procedure and the characteristics of the patient. The characteristics of the patient have to do with how anxious he or she is and the levels of intelligence and understanding of the patient. Works Cited Bolam v Friern Hospital Management Committee [1957] 2 All E.R. 118; [1957] 1 WLR 582. 1957. Print. Chatterton v Gerson. QB 432. House of Lords. 1981. Print. Chester v Ashfar.1 A. C. 134. House of Lords. 2004. Print. Hatcher v Black. House of Lords. 1954. Print. Hills v Potter. May 18; [1983] 3:716-29. Queen’s Bench Division. 1983. Print. Nelson-Jones, R., and Burton, F. Medical Negligence Case Law. London: Fourmat Publishing, 1990. Print. Potts v NWRHA. House of Lords. 1983. Print. Richard Griffith and Cassam Tengnah. “Need to Know: Consent and the Nurse’s Duty to Warn of Risk.” British Journal of Community Nursing 17.1 (2013): 35-37. Print. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital. A. C. 871. House of Lords. 1985. Print. Wells v Surrey Area Health Authority. 33 SASR 189. Queen’s Bench Division. 1989. Print. Read More