Medical Law
Clinical Negligence
Hani Azri – LLB Scholar
BPP University College Law School
London






Medical Law overview
Clinical Negligence
The Duty of Care
Bolam test & Bolitho
Standard of care ; important case law
Consent


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


CN refers to professional malpractice within
the medical field.
Type of Action:



Criminal
Civil
Regulatory





Why ?
Increased knowledge of patients
(internet, rights/law)
Increased pressure on Doctors…..
Legal Aid … “no win no fees lawyers”
Influence from other countries





R v Bateman
Cassidy v Ministry of Health
Barnett v Chelsea & Ken. Hospital
Bull v Devon AHA
Prendergast v Sam & Dee




Main test: Bolam v Friern H.M.C per McNair 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 ?

Court can find a body of professional doctors
illogical .







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 : 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
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).