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MARGARET BRAZIER & EMMA CAVE Medicine, patients and the law MANCHESTER 1824 Manchester University Press CONTEMPORARY ISSUES IN BIOETHICS, LAW AND MEDICAL HUMANITIES Contemporary Issues in Bioethics, Law and Medical Humanities, edited by Rebecca Bennett and Simona Giordano, of the University of Manchester, was established to publish internationally respected book-length works - primarily monographs and edited collections, but also specialist textbooks - in contemporary issues in bioethics, law and the medical humanities and as such welcomes proposals from this range of academic approaches to pertinent issues in this area. The series focuses on the strong foundations and reputation of the University of Manchester's world-leading scholars in bioethics and law, and its internationally respected Centre for Social Ethics and Policy. Works from across the humanities, brought to bear on contemporary, historical, and indeed future bioethical questions of the highest social and moral concern and interest, will find a perfect home within this series. From reason to practice in bioethics An anthology dedicated to the works of John Harris Edited by John Coggon, Sarah Chan, Smen Holm and Thomasine Kushner Margaret Brazier and Emma Cave Medicine, patients and the law Sixth edition Manchester University Press Copyright© Margaret Brazier and Emma Cave 2016 The rights of Margaret Brazier and Emma Cave to be identified as the authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co. uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 978 1 7849 9136 4 paperback First published 2016 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Typeset in Sabon by Koinonia, Manchester Printed in Great Britain by Bell & Bain Ltd, Glasgow Contents Preface page xv Introduction XVll Table of cases XXlll Table of statutes xlvii Table of statutory instruments liii Table of European and international material lvii Part I MEDICINE, LAW AND SOCIETY Chapter 1 THE PRACTICE OF MEDICINE TODAY 3 Tiers of regulation 5 The National Health Service 6 Angels or demons? 10 Whistle-blowing 12 A duty of candour 12 Entitlement to practise 13 A tradition of self-regulation-to be consigned to history? 13 Composition of the General Medical Council 15 Advisory function 16 Medical education 16 Maintaining a register 18 Revalidation 19 Disciplining doctors - fitness to practise 20 Appeals to the High Court and the Professional Standards Authority 22 Regulating the NHS 24 Supervising, managing and protecting employees 24 Governance 26 Specialist regulators 28 Whither the NHS? 29 V Contents Chapter 2 DOCTORS' RESPONSIBILITIES: PATIENT'S RIGHTS 31 The impact of the Human Rights Act 1998 33 How the Human Rights Act works 34 Who can be sued? 38 Who can sue? 40 Convention rights 40 Article 2 41 Article 3 43 Article 5 44 Article 6 46 Article 8 46 Article 9 49 Article 10 50 Article 12 50 Convention on Human Rights and Biomedicine 51 NHS Constitution 51 Access to healthcare 52 NICE 53 Challenging NHS resource allocation decisions 55 Top-up treatment 60 Timely treatment 60 Treatment abroad 61 Chapter 3 MEDICINE, MORAL DILEMMAS AND THE LAW 63 Ethics not etiquette 65 Respect for autonomy - self-determination 67 Beneficence - do good 67 Non-maleficence - do no harm 68 Justice 69 Autonomy and patients' responsibilities 70 Virtue ethics and the ethics of care 72 To whom (or what) do we owe ethical obligations 72 The sanctity of life: Judaeo-Christian tradition 73 The sanctity of life in a secular society 74 Sanctity of life: a different perspective 75 Sanctity of life and the medical profession 75 The beginning and end of life 76 Killing and letting die 78 Sanctity of life and the law 80 VI Contents Chapter 4 A RELATIONSHIP OF TRUST AND CONFIDENCE 85 Breach of confidence: medical privacy 86 Disclosure after death 88 Justifying disclosure 89 The General Medical Council 94 Disclosure with consent 95 Disclosure where the patient lacks capacity 96 Disclosure to protect the patient 97 Compulsory disclosure 99 Disclosure in the public interest 102 Serious crime 102 Serious communicable diseases 104 Freedom of the press 106 Genetic information and confidentiality 107 Genetic privacy 109 Liability for failure to disclose 110 Data Protection Act 1998 111 An EU Data Protection Regulation 113 The right to be forgotten 114 Anonymised data 115 The Health and Social Care Information Centre 116 Care.data 117 Patients' access to records 118 Part II MEDICAL MALPRACTICE Chapter 5 AGREEING TO TREATMENT 123 Emergencies 126 A right to say no? 128 What is meant by consent? 131 Does it matter who operates? 133 How much must the doctor tell the patient: informed consent? 133 Negligence and a duty to inform 136 Bye bye Bolam 137 Sidaway 138 The road from Sidaway 140 The impact of Pearce 142 Montgomery: autonomy reigns? 142 Alternative treatments 144 What about understanding? 145 The therapeutic exception 145 Causation 146 Rights, partnership and informed consent 148 vu Contents Chapter 6 CAPACITY, CONSENT AND COMPULSION 153 Not just about healthcare 155 Not altogether new 156 The threshold of capacity 156 Treating adults who lack mental capacity 161 F v West Berkshire Health Authority 162 Defining best interests 163 'Best interests' survives: the Mental Capacity Act 164 Modified best interests 166 Serious medical treatment 169 Use of restraint and detention 170 Deprivation of Liberty Safeguards 172 The role of the family? 175 Advance directives 176 Lasting powers of attorney 178 Deputies 179 Court of Protection 180 Mental health legislation 181 Compulsory treatment under the 1983 Act 183 Vulnerable patients: the inherent jurisdiction 185 Protecting the public 187 Criminal liability 189 The uncooperative patient 191 Chapter 7 CLINICAL NEGLIGENCE 193 Duty of care 194 Psychiatric harm 196 Medical examinations 197 Responsibility for harm inflicted by 'dangerous' patients 198 The medical standard of care 198 Junior doctors 200 Ascertaining the standard of care: Bolam 201 Bolitho: a new dawn? 203 'Responsible practice' means current practice 207 Protocols and guidelines 208 Diagnosis 209 Treatment 211 Overtired, overworked doctors 213 Relating the injury to medical negligence: problems of causation 214 Modifying the 'strict rules' 216 Loss of a chance 218 General practice 219 Prescription errors 221 Contributory negligence 222 Private patients 223 Vlll Contents Criminal liability 223 Wilful neglect 227 Corporate manslaughter 227 Chapter 8 MALPRACTICE LITIGATION 229 Funding a lawsuit: public funding 230 Conditional fee agreements 231 Defending claims 233 Whom should the patient sue? 234 Extending direct liability 235 Private patients 239 General practitioners 239 When must proceedings be started? 240 Civil justice reform: the Wool£ and Jackson Reports 241 The Clinical Negligence Protocol and case management 241 Openness, candour and obtaining health records 243 Proving negligence: the role of the expert 244 May the burden of proof shift to the doctor? 246 Awards of compensation 249 Periodical payments - structured settlements 252 Malpractice crisis: reality or illusion? 253 Defensive medicine 253 Financial costs to the NHS 255 Wider 'costs' to the NHS 257 Chapter 9 COMPLAINTS AND REDRESS 259 Health Service public inquiries 261 Aligning complaints and redress 263 Complaints procedures - a troubled history 264 Raising a concern 265 Local resolution 266 The Parliamentary and Health Service Ombudsman (PHSO) 267 Private treatment 270 The power of apology 270 Redress 271 An attack on tort 272 Alternatives to tort 274 No-fault compensation abroad 276 The rejection of no-fault compensation in England 278 Causation 278 Deterrence and accountability 279 Cost 281 Reforming the torts system 282 IX