The Aspects of the Medical Law in the UK - Essay Example

Introduction In determining whether Sam can claim against Dr Smith it is necessary to consider the rights of a doctor to refuse to prescribe a particular medication. It is also necessary to consider the circumstances under which a patient can be removed from the doctors list in order to advise Sam as to whether he can do anything about having been removed from the list. When considering any potential claim against the hospital it will be necessary to consider whether they were negligent in taking so long to treat him. Sam will also need advising about whether he might face charges for disclosing the information about Gigi to the newspaper. This will involve examining the law in relation to the protection of informants in relation to journalism, and analysing when the courts might order the newspaper to disclose the identity of their source. In relation to Dr Smith it will be necessary to discuss confidentiality in relation to a doctor- patient situation. This will involve examining case law in this area in order to determine the way the courts approach the right of privacy of a patient. It will also be necessary to discuss the storing of confidential material both in paper format as well as electronically. This will include deciding whether a doctor ought to ensure that patient’s notes cannot be accessed by a subsequent patient by making sure that all such notes are filed before dealing with the next patient. Right to refuse to prescribe a particular medication The starting point is to examine circumstances when a doctor can refuse to prescribe a certain type of medication. It was argued by Brazier (2006) that Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment, regardless of the nature of the treatment. In so far as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. In general terms the courts and the General Medical Council respect the autonomy of the patient with regard to their treatment. A doctor has the right to refuse to prescribe a certain form of treatment if they believe that the medication requested might have an adverse effect on the patient. The court endorsed the right of the doctor to refuse to prescribe a certain form of treatment in R (on the application of Burke) v General Medical Council [2005]1. The court of appeal in this case stated A patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to his clinical needs. The appeal court was of the opinion that the applicant could not claim an infringement of the rights under the Human Rights Act 1998 in a situation were it was clear that the doctor was acting in the best interests of the patient. The court did, however, hold that there had been a violation of Article 8 HRA in Glass v United Kingdom [2004]2 in which the doctor administered medication against the express wishes of the mother of the patient. This can be contrasted with the case of (A Hospital) v SW (represented by the official solicitor as a Litigation Friend) & A PCT (Interested Party) [2007]3 in which the doctor’s decision to withhold life sustaining treatment was endorsed by the courts on the basis that the patient was in a persistent vegetative state with no hope of recovery. Other groups such as the National Institute of Clinical Excellence have questioned the right of patients to insist on a particular form of treatment. They considered, in particular, the right of a pregnant woman to insist on a caesarean section. In 2004 guidelines were issued by NICE in which they made the observation that ‘a maternal request is not on its own an indication for CS’. It is the contention of NICE that doctors should be entitled to decline the request for such a procedure, although advise that the patient should be referred to another doctor for a second opinion, to protect the doctor from being open to litigation if CS would be in the patients best interest. Although doctors can refuse to prescribe a certain form of treatment the courts have, in some instances, upheld the request of the patient to receive the medication they desire. This was demonstrated in R (on the application of Rogers) v Swindon NHS Primary Care Trust [2006]4. The primary reason for the court awarding in favour of the plaintiff in this matter was that the Trust had been supplying herceptin to other patients on the NHS and that, unless there were exceptional reasons why the plaintiff should not be given the medication, the Trust had a duty to supply her with the treatment. The court did not, however, insist on doctors treating a child in Portsmouth NHS Trust v Wyatt [2005]5 based on the fact that any form of treatment would be futile. In this case the court stated that doctors were justified in withholding medication even though the child would die without the treatment. In the above it has been stated that BPLow should only be prescribed if there is an ‘exceptional personal or clinical need’. From the information given, there is nothing to suggest that Sam fits the criteria. Dr Smith could argue that there are other types of medication that would work for Sam. If he can convince the court that Sam does not fit the criteria the courts are likely to uphold his decision not to prescribe the medication. Sam would have to persuade the court that the alternatives would not achieve the desired result in order for the court to force the doctor to prescribe the tablets. Claim against the hospital In order to bring an action against the hospital Sam would have to prove that they had been negligent in the way they treated him6. When establishing medical negligence the court generally tend to follow the decision in Bolam v Freirn HMC [1957]7. The Bolam test states that ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ In order to bring charges Sam would have to have suffered some detrimental effect as a result of the delay. This might be the case if Sam had suffered brain damage or permanent injury which could have been avoided if he had been treated sooner. The court was asked in St George v Home Office [2008]8 whether the delay in receiving hospital treatment had contributed to the brain damage suffered by the patient. In this case the court was of the opinion that the patient would have suffered the same degree of damage even if treatment had been instantaneous. By contrast in Williams v Jervis [2008]9 the court felt that the delay in suitable treatment had contributed to the overall recovery of the patient, and awarded in favour of the claimant for money to cover subsequent medical treatment she might require. Right of GP to remove patient from list In determining the right of a GP to remove a patient form their list it is necessary to examine legislation in relation to this. Removal of patients is covered by s9 of the National Health Service (General Medical Services) Regulations 1992 Schedule 2. Under this section a doctor can remove a patient but must notify the FHSA in writing of his intention to do this. In 1999 the General Practitioners Committee made the point that in general a patient should only be removed from the list if they move from the area or if there has been An irretrievable breakdown of all or part of the patient-practice relationship, usually between patient or doctor, or… Violence or threatening behaviour by the patient in a special case. To assist GP’s in determining the validity of the removal the British Medical Association made the following recommendation in 30 January 2009 The removal of patients from general practitioners’ lists should continue to be an exceptional and rare event, and a last resort in an impaired doctor patient relationship. When trust has irretrievably broken down, it is in the patient’s interest to find a new GP. It has generally been accepted that a patient can face immediate removal from the practice if they have threatened violence against the doctor or any of the staff working at the practice. The GPC have also stated that in some instances fear of attack can warrant the removal of the patient. In all other circumstances the GPC generally insist on a patient being issued with a warning before the doctor can remove them from the list. In situations were the patient feels that the doctor has acted unfairly in removing them from the list the ombudsman can intervene. This occurred in Case No. E.2449/98-99 - Removal of patient from GPs list after complaint to Ombudsman. In this case the ombudsman felt that the doctor had been hasty in making his decision, and that as there had been no fear of attack nor violence demonstrated by the patient the GPC would not support the removal of the patient from the list. This was also the case in Case no. E.1771/01-02 GP, in which the Ombudsman ruled that the doctor had a duty to issue a warning to the patient before removing them from the list. In this case the doctor averred that a warning had been given previously, but as no such warning had been recorded, he was ordered to allow her back onto the list. It was recommended that in future a record should be kept of any warnings issued. A report by the GMC in 2001 recognised that doctors would be justified in removing patients from their list if violence had been used or items had been stolen by the patient. In the situation above, if the doctor can discover the source of the leak of the information to the paper, he could argue that Sam had effectively stolen the file, even though he returned it to the reception on leaving. This would give the doctor grounds to have him removed from the list. The Ombudsman, Michael Buckley, in 2002, recommended that GP’s should give patients the opportunity to modify their behaviour before taking the decision to remove them from the list (Vass, 2002). From the above the court may well determine that Dr Smith was justified in removing Sam, especially if he can prove that he feared for his safety as a result of the volatile action of Sam. Right of informant to remain anonymous Generally speaking the courts will allow a journalist to protect his source, on the basis that if no protection was afforded to informants, then many potential informants would refuse to disclose information for fear of being identified. The courts have, however, made exceptions to this rule when dealing with the disclosure of medical records. This was demonstrated in Ashworth security Hospital v Mirror Group Newspapers [2002]10 , were Lord Woolf ordered that disclosure of the intermediary who spoke to the original informant was justified in the grounds that this was a exceptional case. The court stated that as the hospital was a high security mental institute, in which many convicted killers was house, it was imperative that details about the treatment of inmates remained confidential. The court insisted on disclosure of the identity of the intermediary and was going to insist on the disclosure of the original informant, but the matter was resolved before this step was taken. In the case of Sam, he could face charges for stealing the notes and disclosing the information within if the paper is forced to reveal his identity. This would also allow Gigi to bring an action against Sam for damage to her reputation. Confidentiality and doctors In determining whether Dr Smith might be charged with breach of confidentiality it is necessary to consider the Data Protection Act 1998. S60 of this Act makes it clear that anyone disclosing confidential information about another without their consent; can face criminal charges culminating in hefty fines for breaches. There have been several cases in which the courts have been asked to decide whether a breach of confidentiality can be actionable. Cases such as Kaye v Robertson11 and Wainwright v Home Office12, show how the courts, whilst accepting that the privacy of the claimant has been invaded, have also struggled to find any way of affording such persons protection from this intrusion under the English legal system. In the first case the court accepted that there had been ‘a monstrous invasion of his privacy’, but that this was not actionable under English law. Duty of confidence was considered in Attorney General v Guardian Newspapers Ltd (No 2)13 in which Lord Goff stated ‘ a duty of confidence may arise… where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by’. This principle was echoed by Laws J in Hellewell v Chief Constable of Derbyshire14 in which he is quoted as saying ‘I entertain no doubt that disclosure of a photograph may, in some circumstances, be actionable as a breach of confidence … If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right to privacy, although the name accorded to the cause of action would be breach of confidence.’ If the court determine that the leaving of the files in a place readily accessible to other patients amount to a breach of duty with regard to confidentiality, Dr Smith might face charges under the Data Protection Act 1998, and could be made to compensate Gigi for any damage caused to her reputation as a result of the mismanagement of her file. References Lord Woolf, ‘Are the courts excessively deferential to the medical profession? Medical law review, 9, Oxford (2001). Samanta, A, Mello, M.M, Foster, C, Tingle, J & Samanta, J, The Role of Clinical Guidelines in Medical Negligence: A Shift from the Bolam Standard, Medical Law Review 2006 13(3) 321-366 Mason & McCall Smith, Law and Medial Ethics, 5th Ed, 1999, Butterworths http://www.opsi.gov.uk/acts Department of Health Claims of Medical Negligence against NHS Hospital and Community Doctors and Dentists (1989) HC (89) 34 Jones M A , Medical Negligence, (1989) Sweet & Maxwell, p 15 http://alexanderharris.co.uk/article/General_Medical_Council_publish_standards_guide_2767.asp http://careerfocus.bmj.com/cgi/content/full/330/7491/103-a?etoc http://www.nes.scot.nhs.uk/pharmacy/SUPPORT/documents/Volume%201%20Chapter%204.pdf http://www.bma.org.uk/employmentandcontracts/independent_contractors/providing_gp_services/GPremovallist.jsp http://www.ombudsman.org.uk/improving_services/selected_cases/HSC/ic0206/pt1-e1771.html Vass, A, Give Patients a second chance before striking them off says ombudsman, BMJ, 2002 http://www.ombudsman.org.uk/improving_services/selected_cases/HSC/ic9909/pt2-e2449.html GMC, third edition, May 2001 available at http://www.gmc-uk.org/standards/default.htm Brazier, M. (2006) Human(s) (as) Medicine(s), First do no harm - law, ethics and healthcare , Ashgate, http://www.nice.org.uk/ Breach of Confidence (1981) (Law Com No 110) (Cmnd 8388) British Medical Association (1993) Medical Ethics Today: Its Practice and Philosophy. London: BMA. Department of Health (1996) Protection and Use of Patient Information. Guidance from the Department of Health. HSG 96/ 18& Lassi. 96/5. London: Department of Health. General Medical Council (1995) Confidentiality. Duties of a Doctor. London: General Medical Council. Mason & McCall Smith, Law and Medical Ethics, 5th Ed, 1999, Butterworths Toulson, R. G. & Phipps, C. M. (1996) Confidentiality. London: Sweet and Maxwell Read More