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Medical Law & Medical Ethics


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Learning resources

Chapter 1 - Introduction

Chapter 2 - Confidentiality and access to information

CASE STUDY

Facts

Paul is a general practitioner working from a private practice in Harley Street. Amongst his patients are many other medical doctors and one of these, David (a surgeon at a London NHS hospital) has come to see him about the results of a blood test that was done recently. It transpires that David is HIV positive and Paul informs him of this finding. During the ensuing discussion it emerges that David has no intention of telling his HIV negative partner about the diagnosis and is likely to continue to have unprotected sex. He also rejects Paul's suggestion that David should inform his NHS trust of the diagnosis to ensure that either appropriate surgical protocols can be in place or that he might be transferred to a role in the hospital where his infection status does not pose an elevated risk to others.

Paul is enraged by both the callousness with which David is acting towards his partner and the unprofessional attitude he is displaying towards his employer and his patients. He considers contacting (a) David's partner, (b) his line manager at the NHS trust and maybe even (c) the local newspaper to prevent harm to others. He speaks to Marc and Simon who together often advise NHS hospitals in difficult scenarios. Marc is a solicitor and medical lawyer at the nearby hospital’s preferred firm, Rowlett McGuinness LLP, and Simon is an ethicist who coordinates a clinical ethics committee. Paul asks them for advice on how to proceed.

Analysis

Marc starts by telling Paul that, as the case of Egdell (see p. 19) makes clear, he owes a professional duty of confidence to David and must thus justify disclosure. Simon adds that the special relationship of trust between a doctor and a patient also justifies an initial assumption that all information will be kept in strict confidence: David should be able to autonomously reach a decision about how his information is handled. In this case, therefore, because there is no statutory duty to disclose the information without explicit consent from David, Paul will have to show that it is in the public interest to do so. Simon agrees that exceptions to confidentiality must be possible in order to prevent harm to others in certain circumstances.

So Paul will have to demonstrate that there is a public interest in relation to each of the three disclosures that he wishes to make:  with respect to David’s partner, Marc advises that the GMC guidance (p. 20) explicitly states that such a disclosure is permissible, and that the courts have been very reluctant to sanction doctors who follow guidelines. Simon also thinks that this is a situation where Paul will need to balance his obligation of confidence towards David against the possiblity of preventing serious harm to an innocent third party.  Equally, David's line manager at the NHS Trust will have an interest in receiving the information so that the risk to patients may be minimised. However, both Marc and Simon agree that it is difficult to justifiy that it is in the public interest to inform the local newspaper - particularly since any subsequent story would be read widely – as held by the court in X v Y (p. 18) Marc also notes that David might take legal action via Article 8 of the European Convention on Human Rights and Fundamental Freedoms that provides a right to privacy.  He says that the test for justifying disclosure should such a challenge be made – necessity and proportionality – are conceptually very similar to the test in English law in X v Y and Egdell, and the court would probably reach the same answer, and for the same reasons, with respect to each of the three disclosures.  Marc therefore advises Paul that while he may be justified in disclosing David’s HIV+ status to David’s partner and the line manager at the NHS Trust, David would most likely be able to sue for damages – through both breach of privacy and a breach of confidence – if disclosure were made to the local newspaper. Simon feels that whilst it is possible to construct an ethical argument that the information ought to be kept confidential (for example in order to preserve public trust in the medical profession), this view would attract few supporters in the context of serious harm being done to identified individuals or a whole patient population. It is rather preferable here to prevent serious harm to others whilst diminishing David's ability to decide how information about him his handled.


ONLINE RESOURCES

Chapter 3 - Errors and fault

CASE STUDY

Facts

Amy is in labour, and there are complications with her pregnancy.  The treatment team have two options: perform a caesarean section or try to proceed with a vaginal birth and use forceps to help deliver the child if necessary.  The treatment team are minded to try a vaginal delivery, but are concerned that there is a risk that the use of forceps might injure the baby and ask Marc, a solicitor at the firm used by the hospital (Rowlett McGuinness LLP) and Simon, the hospital ethicist, for their opinions.  They tell them that the risk of harm to the baby is greater with the forceps delivery than with a caesarean, but that despite this there are some doctors who would opt for this method as a vaginal birth is seen as better by some, particularly the consultant in charge of the treatment team who is said to have rather traditional views on childbirth.

Analysis

Marc tells the treatment team that, should the baby be injured and suffer brain damage as a result of too much force being used with the forceps (such as occurred in Whitehouse v Jordan), then in the event of litigation claiming negligence a court would use the Bolitho (see p. 52) test to assess the reasonableness of the decision.  It would ask, first, whether there was a body of medical opinion that might have opted for trying a vaginal delivery and, if there was, whether the evidence from that body was able to withstand logical analysis.  He makes it clear that the ‘lack of logical analysis’ must go beyond merely being the non-preferred option of the court, but must be essentially illogical.  That said, the existence of a less risky option in the form of a caesarean would certainly be something that a court would have to take seriously – and it would not matter that the consultant in charge who preferred vaginal delivery was eminent.  Marc advises that the caesarean would be the safer option at this stage. Simon queries whether Amy has been involved in the decision-making process. He feels that if the options, risks and benefits are put to her, she would be best-placed to take a decision because, after all, this is about her and her baby. In the event that Amy can no longer be involved in the process, the treatment team should opt for the manifestly less risky procedure (the caesarean section) over the risky procedure (the forceps) unless Amy has previously made it known that she also has a strong preference that a traditional vaginal birth take place. In any case, it certainly does not matter whether the consultant has traditional views or not, as the views of the patient are decisive in making treatment decisions here.

 
ONLINE RESOURCES

Chapter 4 - Consent and autonomy

CASE STUDY

Facts

Beth suffers pain in her back and, working in an office, sits down all day, which made it worse.  She is offered an operation that will relieve the pain, but carries with it a 1-2 per cent chance of nerve damage, even if performed properly. This nerve damage may lead to paralysis. The treatment team have not yet explained the risks to her as part of the consent process, and wish to know whether they should mention this risk.  On the one hand, the risk is small and they are worried that Beth will panic and refuse consent to the operation unreasonably. The treatment team suggest that many doctors they know would not warn of the risk. On the other hand, they find it difficult to justify not informing a patient of all risks inherent in what is, after all, an elective procedure.

Analysis

The treatment team consult their solicitor, Marc, who informs them that this case is eerily similar in fact to both Sidaway v Bethlem Royal Hospital Governors (p. 78) and Chester v Afshar (p. 86) (what are the chances of these facts coming up twice, nevermind three times!).  She tells them that, while in Sidaway the risk was considered too small to have to be told to patients without prompting, in Chester, the court found

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