Recognition of Patient Autonomy by English Courts
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This paper analyzes to what extent the following statement by Judge Cardozo is recognized by the English courts: "Every human being of adult years and sound mind has a right to determine what shall be done with their own body and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages". The paper concludes, after a review of several cases in the English court system, that English courts have adhered to Judge Cardozo's statement of principle only to some extent.
From the Paper:"The second part of Judge Cardozo's statement is also recognised by the English court. Hardly can a doctor escape liability for assault if he administers treatment to a mentally competent patient without his consent. Consent can either be obtained orally or in writing (express consent) or implied from the patient's compliance with a procedure (implied consent). Patient's consent to treatment will be held invalid if the doctor is found to have misled a patient in relation to medical treatment. This was illustrated in Potts v NWRHA. The patient had agreed to an injection, which she understood to be a routine post-natal vaccination but which was in reality the controversial long-standing contraceptive Depo-Provera. Her consent to the treatment was obtained by the doctor who, although acted in good faith, misled her as to the nature of what was being done to her. The doctor was therefore held liable in battery. Also, in Appleton v Garret, a dentist deliberately overtreated a number of patients for financial reasons, obtaining their purported consent by giving the impression that the treatment was medically necessary. The court said a surgeon who performed an operation without his patient's consent commited an assault for which he would be liable in damages. Here there was no real consent, and the trespass was of such nature as to justify an award of aggravated as well as compensatory damages. Again in R v Tabassum, a false doctor was convicted of indecent assault. He succeeded in persuading several women to consent to breast examination after claiming that he was conducting research into breast cancer. The court held that where there was a mistaken belief that an examination was being made by a medically qualified person, a person was only consenting to the nature of the act and not its quality. In the absence of genuine consent, therefore, the defendant was guilty of indecent assault."
Sample of Sources Used:
- Brazier, M., (2003), Medicine, Patients and the Law. London: Penguin
- Davies, M., (1998), Textbook on Medical Law. Oxford: Oxford University Press
- Devaney, S. (2005), 'Commentary-Autonomy Rules Ok' Medical Law Review, Vol. 13 pp102 - 107
- Feng, T.K., (1987) 'Failure of Medical Advice: Trespass or Negligence', Legal Studies, Vol. 7, 149-168
- Kennedy, I., Grubb, A., (2000), Medical Law: Test and Materials. London: LexisNexis
Cite this Analytical Essay:
Recognition of Patient Autonomy by English Courts (2010, June 09) Retrieved April 21, 2019, from https://www.academon.com/analytical-essay/recognition-of-patient-autonomy-by-english-courts-120340/
"Recognition of Patient Autonomy by English Courts" 09 June 2010. Web. 21 April. 2019. <https://www.academon.com/analytical-essay/recognition-of-patient-autonomy-by-english-courts-120340/>