Medical Law & Ethics

# Medical Law & Ethics — Topic Notes

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## PART 1: CONSENT, CAPACITY & INFORMATION

### 1.1 The Standard of Disclosure: From Bolam to Montgomery

**The Bolam test** governs whether a medical professional has breached their duty of care. A professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of skilled professional opinion, even if other professionals would disagree.
— Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

**Facts (Bolam):** Patient underwent electroconvulsive therapy without relaxant drugs or restraints; fractured during treatment. The practice on use of relaxants was divided in the profession.

**Holding (Bolam):** Not negligent. The test asks whether the conduct accords with a practice accepted by a responsible body of medical professionals, not whether it was the best practice.

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**The Bolitho gloss** on Bolam requires that the professional body of opinion be logically defensible. Courts may reject opinion that lacks logical foundation, even if held by respected practitioners.
— Bolitho v City and Hackney HA [1998] AC 232

**Facts (Bolitho):** A two-year-old suffered cardiac arrest and brain damage after respiratory failure. The consultant paediatrician failed to attend. Experts disagreed whether intubation would have been required.

**Holding (Bolitho):** Bolam test remains valid, but the body of opinion must have a defensible logical basis. The House of Lords held no liability on the facts but confirmed courts may reject expert opinion lacking logic.

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**Montgomery overturns Sidaway on disclosure.** Doctors owe patients a duty to take reasonable care to ensure they are aware of any material risks involved in a proposed treatment, and of any reasonable alternatives.
— Montgomery v Lanarkshire Health Board [2015] UKSC 11

**Facts:** Nadine Montgomery was a diabetic woman of short stature with a large foetus. Consultant Dr McLellan did not warn her of the 9–10% risk of shoulder dystocia in vaginal delivery, deliberately withholding the information as she believed it would cause Mrs Montgomery anxiety and elect for a Caesarean. The baby was born with severe disabilities from complications of shoulder dystocia.

**Holding:** The Supreme Court (unanimous) held the doctor was negligent. The test for disclosure is whether a reasonable person in the patient's position would attach significance to the risk, or whether the doctor knows the particular patient would attach significance to it. The patient-centred test replaced the Bolam-based professional standard in Sidaway v Bethlem Royal Hospital [1985] AC 871.

**Sidaway (overruled on disclosure):** The House of Lords had held that disclosure of risks was to be judged by the Bolam test — accepted professional practice. Sidaway v Bethlem Royal Hospital [1985] AC 871. Montgomery definitively ends this for risk disclosure.

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### 1.2 Causation in Failure-to-Disclose Cases

Even where a risk was not disclosed and the patient would not have chosen differently, the duty to warn can still found liability on a modified causation analysis where justice so requires.
— Chester v Afshar [2004] UKHL 41

**Facts:** Surgeon failed to warn patient of a 1–2% risk of cauda equina syndrome from spinal surgery. The risk materialised. Ms Chester accepted she probably would have had the surgery eventually, just not on that day.

**Holding (HL, 3:2):** The House of Lords upheld liability. Policy and corrective justice required vindicating the patient's right of autonomy. "The right to be informed of material risks would be hollow if it did not carry a remedy." A modified causal approach: the claimant need not show she would never have had the operation, only that the risk crystallised on the particular occasion when she was denied the chance to choose.

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### 1.3 Children and Consent — Gillick Competence

Children under 16 may consent to medical treatment if they have sufficient maturity and understanding to comprehend the nature and implications of the proposed treatment. Parental rights do not confer an absolute veto where the child is competent.
— Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7

**Facts:** Mrs Gillick sought a declaration that DHSS guidance allowing doctors to advise/treat children under 16 on contraception without parental knowledge was unlawful. The House of Lords dismissed her claim.

**Holding:** Parental authority diminishes as the child matures. A doctor may provide contraceptive advice and treatment to a girl under 16 without parental consent provided she has sufficient understanding. This is the origin of the "Gillick competence" test.

**Fraser guidelines (from the same case):** Lord Fraser gave specific guidance for the contraception context: doctor must be satisfied the child understands the advice; cannot be persuaded to inform parents; will likely have intercourse regardless; her health will suffer without advice; her best interests require contraception without parental knowledge.

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## PART 2: MEDICAL NEGLIGENCE

### 2.1 Duty and Breach — Bolam/Bolitho standard

(See above — Bolam [1957] 1 WLR 582; Bolitho [1998] AC 232.)

A doctor does not breach their duty merely because other doctors would have acted differently. However, an opinion that cannot withstand logical scrutiny cannot provide shelter: Bolitho.

### 2.2 Disclosure and Post-Montgomery Liability

Post-Montgomery [2015] UKSC 11, the test for inadequate disclosure is:
1. Was there a material risk? (Would a reasonable person in the patient's position regard it as significant, or would this particular patient?)
2. Did the doctor fail to disclose it?
3. Would the patient have chosen differently had they been informed?

Chester v Afshar [2004] UKHL 41 modifies the third limb: the patient need not prove they would have refused the operation entirely, only that they were denied the opportunity to decide on an informed basis at that time.

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## PART 3: CONFIDENTIALITY

### 3.1 Duty of Confidentiality and the Public Interest Exception

A doctor owes a duty of confidentiality to their patient. This duty is not absolute and may yield to a sufficiently serious public interest. However, there must be a genuine and weighty public interest — the private interests of third parties do not suffice.
— W v Egdell [1989] EWCA Civ 13

**Facts:** A restricted patient detained in a special hospital sought review by a Mental Health Tribunal. His solicitors instructed an independent psychiatrist, Dr Egdell, to report on him. Dr Egdell's report was highly unfavourable and revealed the patient's dangerous interest in firearms. The patient's solicitors withdrew the tribunal application to prevent the report being used. Dr Egdell then disclosed the report to the hospital and DHSS.

**Holding (Court of Appeal):** Dr Egdell's disclosure was justified. The public interest in protection of the public from a dangerous patient outweighed the duty of confidentiality. The duty is not absolute; it yields where "there is a real risk of danger to the public."

### 3.2 Third-Party Interests and Disclosure — Limits

There is no duty owed to third parties to disclose confidential medical information, even where they might benefit from learning it. A doctor has a discretion to disclose; they do not have a duty to do so.
— ABC v St George's Healthcare NHS Trust & Ors [2015] EWHC 1394 (QB)

**Facts:** Patient's father had Huntington's Disease (hereditary, 50% transmission). Doctors failed to disclose this to his daughter (the claimant) who was pregnant. She was not told until after the child was born, at which point she tested positive.

**Holding:** The claimant did not establish a duty of care requiring the defendants to disclose the information. The court (Nicol J) noted the tension between the patient's right to confidentiality and the family member's interest in knowing, and found no duty to disclose on these facts. (Note: Court of Appeal later allowed the claim to proceed on strike-out grounds in [2017] EWCA Civ 336 — the question of duty remained live.)

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## PART 4: END OF LIFE

### 4.1 Assisted Suicide and Art. 8 ECHR

The law criminalising assisted suicide under the Suicide Act 1961 is compatible with Article 8 ECHR. The interference with autonomy is justified by the need to protect vulnerable people.
— R (Nicklinson) v Ministry of Justice [2014] UKSC 38

**Facts:** Tony Nicklinson suffered locked-in syndrome following a catastrophic stroke. He wished to die but could not do so without assistance. He sought a declaration that a doctor who killed him would have a defence to murder, or alternatively a declaration of incompatibility with Art. 8 ECHR. He died of pneumonia after refusing nutrition following the High Court's refusal.

**Holding (UKSC):** The Supreme Court was divided. The majority held it was not the role of the courts — as opposed to Parliament — to make this change to the law on assisted dying. Two Justices (Lords Neuberger and Toulson) held a declaration of incompatibility could in principle be granted but declined to do so, given Parliament was already considering the matter. The prohibition on assisted suicide was held justified under Art. 8(2) — protection of the vulnerable.

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## PART 5: HUMAN RIGHTS IN HEALTHCARE

The ECHR Art. 8 (private life) has direct relevance to patient autonomy, consent to treatment, and end-of-life decisions. Art. 2 (right to life) creates positive obligations on the state in healthcare contexts. Art. 3 (inhuman treatment) is engaged by deprivation of treatment or conditions of care.

The Nicklinson litigation [2014] UKSC 38 established that courts can, in principle, make declarations of incompatibility where the law on assisted dying violates Art. 8, though they declined to exercise that power pending Parliamentary consideration.

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## SUMMARY TABLE OF KEY CASES

| Case | Citation | Principle |
|------|----------|-----------|
| Bolam v Friern Hospital | [1957] 1 WLR 582 | Negligence test: responsible body of professional opinion |
| Sidaway v Bethlem Royal Hospital | [1985] AC 871 | Disclosure of risks governed by Bolam (overruled by Montgomery on this point) |
| Gillick v West Norfolk & Wisbech AHA | [1985] UKHL 7 | Gillick competence: child under 16 may consent if sufficient maturity |
| Bolitho v City and Hackney HA | [1998] AC 232 | Bolam opinion must be logically defensible |
| W v Egdell | [1989] EWCA Civ 13 | Confidentiality yields to serious public interest (public danger) |
| Chester v Afshar | [2004] UKHL 41 | Modified causation: right to informed consent vindicated even if risk random |
| R (Nicklinson) v Ministry of Justice | [2014] UKSC 38 | Assisted suicide prohibition justified under Art. 8(2); courts should defer to Parliament |
| Montgomery v Lanarkshire Health Board | [2015] UKSC 11 | Patient-centred disclosure test replaces Bolam; material risk must be disclosed |
| ABC v St George's Healthcare NHS Trust | [2015] EWHC 1394 (QB) | No duty to disclose confidential genetic information to at-risk third parties |