Informed Consent and Its Exceptions in Medical Practice

Law of Tort
Running Head: Law of Tort 0
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Student’s Name

Law of Tort 1
Contents
Introduction......................................................................................................................................2
Discussion........................................................................................................................................3
The Bolam test 3
Right of Autonomy 4
Informed Consent 4
Therapeutic privilege 7
Conclusion.......................................................................................................................................7
Bibliography....................................................................................................................................9
Case Laws 9
Other Resources 9
Books and Journals 10

Law of Tort 2
Introduction
A medical practitioner is a person, who is a doctor or practice in a medical field. Cause of his/her
expertise in the field, people (patient) does trust him1. A medical practitioner is a professional
and therefore requires to follow the ethical principles in his/her practice. According to tort law,
some person owes a duty of care in respect to others. The relationship of a doctor and a patient
comes under the same category. It means a doctor owe a standard of care towards his/her
patient2. A duty of care refers to a situation where a person is required to act similar to a
reasonable person. Health care is a very significant topic to study as it is directly related to the
health of a person. The duty of care becomes more crucial when it comes to medical practices.
According to the provision of Tort law, a doctor is required to act in the best interest of a patient.
Informed consent is another concept that requires a doctor to take prior consent of a patient
before go ahead with any kind of treatment3. However, there is some exception of informed
consent rules. In the present report, the focus will be made on the requirements of informed
consent and the exceptions thereof.
1 merriam-webster.com, ‘medical practitioner’< https://www.merriam-webster.com/dictionary/medical
%20practitioner> accessed 04 November 2018
2 Almas Shaikh, ‘Doctor-Patient Relationships: The Distinction Between Contractual and Tortious Liability’ <
https://www.lawctopus.com/academike/doctor-patient-relationships-the-distinction-between-contractual-and-
tortious-liability/> accessed 04 November 2018
3 Joy Wingfield, Patient consent in the UK <
https://www.pharmaceutical-journal.com/learning/learning-article/patient-consent-in-the-uk/20068830.article?
firstPass=false> accessed 04 November 2018

Law of Tort 3
Discussion
The informed consent is related to ethical practices and consists of many other rules and
principles that are described and discussed below. This is to state that all these rules and
principles are based on the duty of care that a doctor owes in relation to his/her patients.
The Bolam test
The test derived from the case of Bolam v Friern Hospital Management Committee4. In the
decision of this case, the high court judge McNair J provided that a doctor will not be considered
guilty of negligence if the same acts in a proper manner and according to accepted practices 5.
The decision of the court was far significant and the same has been used in many of the cases as
legal precedent. These cases include some of the important cases such as Sidaway v. Board of
Governors of the Bethlem Royal Hospital6, Maynard v. West Midlands Regional Health
Authority7 and Whitehouse v. Jordan8. In the decision of all these cases, it has been held that
doctors do not need to take consent of patient in every case and the matters on which consent is
required must be of material nature9. The Bolam test made the receiving of damages typical for
the victims, however, the same becomes the basis of judgment in most of the cases10.
Right of Autonomy
4 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
5 John S. Phillips and Sally Erskine, ‘Landmark Papers in Otolaryngology’ (Oxford University Press 2018) 384
6 Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871
7 Maynard v. West Midlands Regional Health Authority[1985] 1 All ER 635
8 Whitehouse v. Jordan [1981] 1 All ER 267
9 swarb.co.uk, ‘M A Y N A R D V W E S T M I D L A N D S R E G I O N A L H E A L T H A U T H O R I T Y : H L
1 9 8 5 ’ < H T T P S : / / S W A R B . C O . U K / M A Y N A R D - V - W E S T - M I D L A N D S - R E G I O N A L -
H E A L T H - A U T H O R I T Y - H L - 1 9 8 5 / > accessed 04 November 2018
10 Daniele Bryden, Duty of care and medical negligence (2011) Continuing Education in Anaesthesia Critical Care
& Pain 124