Legal aspects of consent to treatment and the nature of malpractice claims in the United Kingdom

The UK law on consent to medical treatment is derived from statutes (acts of parliament and their subordinate statutory instruments) and case law which develops as individual cases are decided by the courts. Regard must also be had to guidance published by the General Medical Council, which all UK-registered medical practitioners are expected to follow. Further detailed guidance on consent is provided by the Royal College of Surgeons.

(Ne) Mogućnost ostvarivanja prava deteta na zdravlje i prava deteta na socijalno obezbeđenje

Human rights from the category of economic, social and cultural rights closely resemble moral ideas and proclamations. Therefore they must be realized progressively and gradually, in accordance with the available resources and with respect to minimum core obligations of the States Parties. The child’s right to health and child’s right to social security are typical examples of it. In this paper, the author deals with the problems of interpretation of those rights and their implementation at the national level, with special regard to the Serbian legislation. Special attention is paid to implementation of child’s right to health and child’s right to social security in the area of health care and social protection. The child’s right to health is directly incorporated into domestic law including various entitlements acquired by the child as a patient. Among these entitlements, the most significant are those involving child’s participation rights, such as the right of the child to consent to medical treatment. On the other hand, the child’s right to social security has not been directly incorporated into domestic law, but its implementation is dispersed over the rules on social care and different forms of health insurance. Thereby, a child is primarily considered as a passive user of social security services.

Valid consent to medical treatment

When consent to medical treatment is described as ‘valid’, it might simply mean that it has a sound basis, or it could mean that it is legally valid. Where the two meanings are regularly interchanged, however, it can lead to aspects of the sound basis or the legal requirements being neglected. This article looks at how the term is used in a range of guidance on consent to treatment and argues for consistency.

Think of the Children: Liability for Non-Disclosure of Information Post-Montgomery

In 2015, the Supreme Court in Montgomery v Lanarkshire Health Board handed down a landmark decision on informed consent to medical treatment, heralding a legal shift to a more patient-centred approach. Montgomery, and the extensive commentary that has followed, focuses on ‘adult persons of sound mind’. Cave and Purshouse consider the potential claims that may flow from a failure to adequately inform children. They argue that the relevance of the best interests test blurs the boundaries between negligence and battery. Limitations on children’s rights to make treatment decisions for themselves impact on their potential to claim in negligence for non-disclosure and, conversely, enhance the potential relevance of the tort of battery. In paediatric cases, Montgomery raises expectations that the law is currently ill-equipped to satisfy. Tort law provides a legal incentive to disclose relevant information to children but limits the availability of a remedy.

6. Incapacity II: Children

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate; providing able students with a stand-alone resource. This chapter discusses children’s medical treatment. It looks at the limits of parental decision-making, and cases in which the courts have overruled parental wishes in order to protect the child’s best interests. Where parents cannot agree with each other about serious medical treatment, or where the treatment is especially controversial, decisions might also need to go before a court. Cases involving withdrawing or withholding life-prolonging treatment are also covered. In relation to mature minors, it discusses the concept of Gillick-competence and the difference that has arisen between the child’s right to consent to medical treatment and her much more limited right to refuse.

4. Informed Consent

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the issue of ‘informed consent’, i.e. how much information must be provided to patients before they consent to medical treatment. It first considers the ethical justifications for informing patients about their medical treatment and then examines the legal framework that protects patients’ interests in information disclosure, with particular emphasis upon the implications of the recent landmark Supreme Court case of Montgomery v Lanarkshire. The chapter also explores some alternatives to the law of tort, and the importance of the guidance produced by the medical profession.

5. Incapacity I: Adults

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines cases when a patient is unable to give consent to medical treatment, and considers: the consent requirement under criminal law and civil law; the form that consent should take; and the principle of autonomy. It discusses how the law treats patients who lack capacity or whose capacity is in doubt. It offers detailed analysis of the Mental Capacity Act 2005 and recent Court of Protection decisions. It also covers cases involving the withdrawal of life-prolonging treatment from patients who lack capacity.