NHS Doctor Malpractice Claims
In the English legal system there may be claims in negligence for NHS doctor malpractice provided that it can be shown that there is a duty of care in existence, that the duty has been breached, and that the breach of duty caused the damage.
A significant level of difficulty has been shown for medical treatment and battery. With only a few exceptions, usually for emergency situations, there could be battery if a doctor treats a patient without consent.
In the American case of Schloendorff v Society of New York Hospitals, it was decided by Judge Cardozo that those of sound mind and adult years should have the right to decide whether or not to consent to medical treatment, and that an operation performed by a surgeon without the consent of that patient would be committing a tort. This is American law, but can be persuasive on English law, therefore his point of view has been taken into account when deciding cases in the United Kingdom.
In the case of Ref (1990) this concept caused problems because of a mental health condition and a possible inability to make competent decisions concerning consenting to medical treatment and individual health. The woman in the case was in a mental institution, and had become sexually active with a fellow patient in the mental institution, despite having a mental age of approximately four or five. Although other forms of contraception were available, they were deemed to be unacceptable and impractical in the circumstances, therefore the doctors decided to apply to the court for a compulsory sterilisation as it was said to be in the best interests of the patient. The court held that this treatment should be allowed because of the exceptional circumstances, although Lord Goff confirmed that in the case of a competent adult patient, any treatment carried out without the consent of that patient would indeed be enough to constitute a battery.
A competent adult also has the right to refuse to be given medical treatment, even if this refusal would ultimately result in death. To ignore the wishes of the patient and to treat following such a refusal would again be enough to constitute a battery as there would have been a lack of consent.
This principle was considered in the case of Re T (1992) in which patient was injured in a car crash and urgently needed to be given a blood transfusion otherwise she would be facing death. Because of her religion she felt that she could not go through with this treatment, and therefore refused on religious grounds. The Court of Appeal accepted that in this case the patient was delirious at the time of the refusal and that she was acting under the strong influence of her mother, who held the same religious beliefs as her daughter, therefore it was felt that the influence was undue. This caused the doctors to decide to go against her wishes and to administer the treatment, therefore by giving her the unwanted treatment, the doctors had in fact acted in her best interests and there was therefore no liability imposed. However, the court did accept that a competent patient would have the absolute right to refuse treatment even to the point of death as a result.
Generally, a patient complaining about medical treatment and possible malpractice will be a claim under negligence rather than battery.
There are also various defences available to the doctors that may negate the possibility of malpractice and therefore prevent liability from being imposed. Volenti non fit injuria, or consent, is a problematic issue. A doctor will be able to use the defence if the patient has consented to medical treatment, which is why doctors will always try to gain written consent to treatment that is not administered under emergency circumstances. However, this consent will be invalid and therefore treatment could amount to battery if the patient Is not fully aware of the type of treatment that is to be given to him or her.
Where the patient has been informed of the existence of the risks of treatment, even without full briefing on the full of the possible risk, this will also not be enough to bring a battery case of NHS doctor malpractice. For example, in the case of Sidaway v Governors of Bethlehem Royal and Maudsley Hospitals (1985) Mrs Sidaway was paralysed following an operation, and there was no viable claim that she had not consented, having not been fully aware of the potential consequences of the risk. The court therefore accepted that there was no doctrine of informed consent.
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