pyq presentation part qc 1c

8/3/2019 Pyq Presentation Part Qc 1c

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C) Rosy is unhappy that Dr Sun did not inform her about the risk of the

treatment. Advise Rosy whether she could sue Dr Sun for non-disclosure of

the risks of the treatment. (10 marks)

1. IssueWhether Rosy can sue Dr Sun for non-disclosure of the risks of the treatment

2. LawTo obtain a legally valid consent three elements ofconsent need to be satisfied.I) Consent must be real

A patient must be given sufficient information about thetreatment. She must know what he is consenting to and thenature and purpose of the purposed treatment must beunderstood by the patient.

In the case of Chatterton v Gherson [1981] Bristow J

stated that once the patient is informed in broad terms of thenature of the procedure which is intended and gives herconsent, the consent is real.

In the doctrine of informed consent, a doctor should give thepatient sufficient information for him to understand the natureof any proposed treatment, its implications and risks, and theconsequences of not undergoing the treatment.

The patient should decide whether or not to undergo any

medical procedure.


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y In the case of Salgo v Leland StanfordJr University Board of Trustees

(1960) Fact: The doctor failed to warn his patient of the

risk of paralysis inherent in the performance of atranslumbar aortography, and as a result of theoperation the patient suffered severe paralysis of

the lower limbs.T

he patient claimed that the doctorwas negligent in failing to warn the notice ofparalysis.

Held: A physician would violate his duty to hispatient and subjects himself to liability if hewithholds any facts which are necessary to form the

basis of an intelligent consent by the patient to theproposed treatment and full disclosure of the factsis necessary to an informed consent.


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y In the case of Canterbury v Spence(1972) Fact: The plaintiff suffered paralysis as a result of

undergoing laminectomy. He claimed that doctorwas negligent in failing to warn him of the risk ofparalysis.

Held: Robinson J stated that the doctor has a duty

to disclose all material risks and the test ofmateriality is not whether the patient would attachany significance to it but whether a reasonableperson in the patients position would have done so.


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y In the case ofHills v Potter [1984] Fact: The plaintiff was paralyzed following an

operation to correct a neck deformity and assertedthat the defendant had never told her that shemight worse off following the operation. All threeneurosurgeons testifying as expert witnesses statedthat they would have acted similarly as the

defendant which means that the risk of possibleparalysis would not have been given to the patient.

Held: The professional standard of practice appliesto a doctors duty to disclose in the same mannerthat it applies to duty with respect to diagnosis and

treatment. This means the medical practitionerneed only to tell patients what other doctors thinksthey should be told. The standard of disclosure is tobe based on medical judgment.


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y In the case of Sidaway v Board ofGovernors of Bethlem Royal Hospital

and the Maudsley Hospital [1985] Fact: The plaintiff underwent an operation on her

spine to relieve pressure on one of the nerve roots.Unfortunately, during the operation, her spinal cordwas damaged leaving her disabled. The

neurosurgeon had told her about the risk ofdamage to the nerve root (a risk about 2%) buthad not told her about damage to the spinal cord (arisk of 1%). The plaintiff argued that the defendanthad been negligent in not telling her of the risk ofdamage to the spinal cord.

Held: It was a matter for the doctors clinical judgment which risks should be disclosed to enablethe patient to make a rational decision. Thus theplaintiffs claim failed.


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y In the case ofF v R (1983) Fact: A married woman who had no desire to have any

more children was advised to have a tubal litigation

operation. She was told that the operation would ensurethat she will not have any children in the future but shewas not told that there was a 1% failure rate of theoperation being reversible. The operation was performedcompetently but unfortunately, the procedure given

reversed itself and she became pregnant. She brought anaction against the doctor for failing to inform her of the1% risk that the operation might reverse itself.

Held: The court has an obligation to scrutinizeprofessional practices to ensure that they accord with thestandard of reasonableness imposed by the law

notwithstanding his conduct accords or not with thepractices of his profession or some part it. The medical judgment may be relevant but not conclusive indetermining the adequacy of disclosure.


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y In the case of Rogers v Whitaker (1992) Fact: Ms. Maree Lynette, aged 47, lost most of the sight of her right eye as

a result of being penetrated by a stick when she was a child. She hadnormal vision on her left eye and had managed to lead a substantially

normal life. Her ophthalmic surgeon, Mr Christoper Rogers advised her thathe could perform surgery to remove scar tissue on her right eye, whichwould improve the appearance of the eye and would probably restoresignificant sight to the eye. Further, the operation would help control herearly glaucoma. She incessantly questioned Mr Rogers as to the possiblecomplications of the operation and obviously concerned that her good eyemight be inadvertently harmed during the surgery of the other eye. Sheeven suggested that her left eye be covered during the operation in order to

protect her good eye. However, Ms Whitaker did not ask whether it waspossible that an operation on her right eye might itself affect the other eye.In fact, there was a small risk that this could occur if she developed a rarecondition known as sympathetic ophthalmia. Mr Rogers did not mentionthe risk to her and Ms Whitaker elected to have the proposed surgery.Unfortunately, the operation did not improve the sight in her right eye assymphathetic ophthalmia developed in Ms Whitakers left eye. This resultedin her losing all her sight in the left eye and thus rendering her virtually

blind. Held: Mr Rogers had failed in his duty by omitting to tell her of the risk of

contracting sympathetic ophthalmia for three reasons. Firstly, Ms Whitakerhad questioned him about the possible complications involved in theprocedure. Secondly, she had expressed a great deal of concern aboutprotecting her left eye, even though she had not asked it specifically aboutwhether the operation on her right eye could lead to her developing adebilitating inflammation of her left eye. Lastly, the materialization of the

risk had disastrous consequences for her.


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y In the case Liew Sin Kiong v Dr Sharon M Paulraj [1996] Fact: The plaintiff was a patient of Dr Molly Elizabeth Matthew who was a

government ophthalmologist. Dr Molly had been treating the plaintiff for juvenileglaucoma, including two operations under general anaesthesia on his eyes in1990. The operations done were two trabelectomies, one for each eye. This wasdone in order to create the outflow of intraocular fluid so as to reduce theintraocular pressure. The operation was a success with the plaintiff retaining hisvision and the intraocular pressure was controlled with medication. Howeverabout two years later, even with medication, the intraocular pressure could notbe controlled. At that time Dr Molly recommended the plaintiff should go for anoperation in Kuala Lumpur, as required treatment was not available in Sabah. Theplaintiff did not heed the recommendation, instead, sought treatment from thedefendant who was an ophthalmologist practicing in the private clinic in Sabah.After conducting an examination, the defendant prescribed some medication andconducted further operation o both eyes. The plaintiff was asked to sign a consent

form. After the operation, the plaintiff suffered severe pain in his eyes. He wasadmitted to the Queen Elizabeth Hospital in Kota Kinabalu but as a result of theinfection from the operation, he lost sight of his right eye.

Held: The defendant was not liable as the plaintiff failed to prove that thedefendant had not acted in accordance with the standards of a competentophthalmologist. Although the consent form did not state that the defendant hadinformed the plaintiff of the risk of the infection, it did not mean that the risk wasnot explained. If a doctor was of the view that a patient need of an operationthen such benefit outweighed a remote risk as the doctor should be allowed thetherapeutic privilege in deciding whether or not to disclose the risk.


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y In the case Tan Ah Kau v Government of Malaysia [1997] Fact: The plaintiff a lorry driver was paralyzed from the waist down

after the defendant carried out a surgical operation. The main issuedbefore the court was whether at the time when the plaintiff signed theconsent forms, the plaintiff understood the nature and consequences of

the consent and whether he knew the subject matter that was centralto his consent. In his evidence, the plaintiff claimed that he had not given real and

informed consent to the treatment as no adequate information wasgiven to him to enable him to comprehend the nature andconsequences of the consent. The plaintiff maintained that he hadsigned two blank forms at the same time but was not given anyexplanation before the operation. He was only told that if he were notoperated on, he would not be able to walk in the future and if he was

operated, he would find relief from the pain within two weeks of theoperation. These were the reasons why he signed the forms. Theplaintiff was not given the opportunity to decide whether to opt for oropt out of the operation. It was not fully explained to him the fact thatwas he was experiencing was a slow, growing tumour and that, in theabsence of an operation, it would take 20 years to lead to paralysis. Itwas not explained to him that if operated immediately, there was astrong possibility that he would immediately become paralyzed.

Held: No consent was actually given by the plaintiff, as the contents ofthe consent had not been fully and comprehensively explained to theplaintiff. He was not given the opportunity to opt out of the operation.He was a man of 40 years with a wife and eight children and wasdiagnosed as having a slow growth cancer. It is illogical that a manwould opt for an operation that subjected to a risk of instant paralysis.


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II) Capacity to consent A competent adult patient once properly informed has

also the unassailable legal right to refuse any or allmedical treatment or care.

In the case ofSt Georges Healthcare NHS Trust v S[1998] Fact: The Court of Appeal found that the trial judge had

been wrong in authorizing a caesarian section becausethe woman was fully competent and had refused toconsent to the treatment.

She had fully understood the risks that her life and thebabys life would be put in danger if he proceeded withnatural delivery. The right to refuse treatment for anadult of sound mind reflected the ethical principles of theautonomy of the individual and the right of self-determination.

Held: Even when her life depends on receiving medical

treatment and adult of sound mind is entitled to refuse it.The fetus is not protected because it is not considered asa separate being from its mother. As such its needs formedical care and assistance cannot prevail over themother.


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III) Consent must be voluntary Consent must be given through the patients own free

will, with no duress or undue influence. In the case ofFreeman v Home Office [1984]

Fact: A prisoner had been injected with certain drugs,apparently for the treatment of a personality disorder.The relevant issue was whether the prisoner had giventhe consent voluntarily to the treatment.

Held: The prisoner could not give the valid consent to theprison officer as the officer was not a doctor but his

disciplinarian. In the case of Re T [1992]

The patient who was pregnant was admitted to hospitalafter a road accident. The patients mother was a devoutJehovahs Witness although the patient was not of thatfaith. After being advised by her mother, she told thedoctors not to give her blood transfusion and asked for

alternative treatments. She signed a form refusing bloodtransfusion. When her condition deteriorated, the courtgranted a declaration that it would be lawful to administerblood transfusion.


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3) Application: In applying to the current situation Rosy must first

fulfilled all three elements consent to determine whether

or not the consent is validly given. Firstly, the consent given by Rosy must be real. She

must know what she is consenting to and the nature andpurpose of the purposed treatment must be understood.In applying Tan Ah Kaus case here, Dr Sun has notmade known any risks to Rosy if she undergoes thetreatment. He has not told to Rosy that she mightbecome paralyzed after the treatment. No consent wasactually given by Rosy, as the contents of the consenthad not been fully and comprehensively explained to her.She was not given the opportunity to opt out of the

operation. Merely signing the consents form does notmean Rosy know and understand all the risk especiallythat she might be paralyzed after the back-surgery. Thusconsent given is not real.


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Cont. Secondly, Rosy must have the capacity to give the

consent. Applying the facts, Rosy who is 58 years old is

competent to have the capacity to make decision to giveconsent for the treatment. Once she is given thenecessary information about the treatment she isassumed to have the capacity to make decision based onher age and mental capacity. In this case, she has thecapacity to make the consent.

Lastly, consent given must be given voluntarily. Inapplying to the current facts, consent given by Rosy ismade voluntarily because there are no elements ofduress and undue influence. However, it is assumed thatthe Rosy gave her consent because of the relationshipbetween her as the patient and Dr Sun as the doctor. In

a normal circumstances consent will be given as thepatient thinks that doctor would do the best for thepatient. Rosy who suffered back injuries would certainlybelieve that Dr Sun will give her the best treatment thusgave her consent towards it. Thus, the consent is notvoluntarily given.


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4) Conclusion: Consent given Rosy is not valid as it not fulfilled the

all the elements of consent. The non-disclosure ofthe risks of the treatment leads the unlawfulconsent. Thus, Dr Sun is liable for not informingRosy the risks of the treatment that she might beparalyzed and can be sued.

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