Prescription Decision, Medical Consent and Tortious Liability

Advising on prescription decisions analysis, medical consent issues and tortious liability claims in UK medical law.

Example Medical Law Problem Question

Question

Walter is worried about his fourteen-year-old son, Flynn, who has cerebral palsy and epilepsy. Walter is concerned that Flynn’s epilepsy tablets are no longer working. Walter has read about a new alternative treatment for epilepsy. He asks Flynn’s GP whether this treatment is available on the NHS. The GP says that it is, but that it will not be prescribed to patients who also have cerebral palsy.

Flynn’s paediatrician, Dr White, talks to Walter about a pioneering operation that has been shown to improve mobility in the legs of cerebral palsy patients. They both think Flynn would benefit from the operation. Flynn, however, says that he does not want the operation as he is happy with the way he is.

Meanwhile, Flynn complains of a splitting headache. Walter takes him to the Accident and Emergency department at the hospital. On reading his medical notes, the Accident and Emergency doctor sends Flynn home and tells him to consult his pediatrician who will be able to give him more specialist advice about his cerebral palsy. However, it turns out that the headaches were caused by an internal brain haemorrhage not connected to either his cerebral palsy or his epilepsy. The haemorrhage causes Flynn to lose the sight in one of his eyes.

Advise Walter on ALL of the following:

1. Any options available to challenge the decision not to prescribe the alternative epilepsy treatment to cerebral palsy sufferers;
2. Any consent issues which arise in relation to Flynn’s opposition to the pioneering operation;
3. Any tortious claim which may exist against the Accident and Emergency doctor in respect of the loss of sight in Flynn’s eye.

Options available to challenge the decision not to prescribe the alternative treatment to cerebral palsy suffers

It is unclear why the NHS are not funding the new epilepsy treatment for patients who also suffer from cerebral palsy.

Walter should be advised to ask Flynn’s GP the reasons behind this decision. It may be that the new treatment is clinically contraindicated for patients with cerebral palsy in which case Walter may not wish to challenge the decision.

If Walter does decide to challenge the decision not to fund the alternative treatment, he may seek to challenge it by way of judicial review. Any application for judicial review must be made within 3 months of the decision not to provide the funding.

Walter may challenge the decision only on the basis that the decision was made unlawfully, and not on the merits of the actual decision itself.¹

To be unlawful, the decision must be shown to be irrational i.e. so unreasonable that no reasonable public body would have made the decision ; outside its statutory powers, or that it amounts to an infringement of Flynn’s rights under the Human Rights Act 1998.²

If the decision is based on a lack of resources, the courts are generally reluctant to interfere with the decisions of NHS bodies. In R v Cambridge Health Authority, ex parte³, Sir Thomas Bingham explained, “Difficult and agonising judgements have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. This is not a judgement the court can make”.

However, if Walter can show that the decision not to provide funding was taken without regard to national policy then the court may take the view that the decision was made unreasonably⁴. There is no obligation on the public body to actually follow the national policy, but national policies have to be considered for the decision to be deemed reasonable, and therefore lawful⁵.

Walter should be advised that he could also challenge the decision on the basis that it amounts to a “blanket ban” for patients with both epilepsy and cerebral palsy, if there is no effective provision for exceptions in individual cases. A “blanket ban” without offering reasons for the decision to refuse funding is likely to be deemed unlawful by the court.⁶

The decision might also be challenged under the Human Rights Act 1998. Walter could argue that the decision infringes Flynn’s Article 8 right to respect for private and family life, and, if this article is engaged, Walter could also argue that Flynn was being discriminated against under Article 14 on the basis of his disability. Walter should be advised, however, that It would be difficult to prove that a decision not to provide funding amounted to a human rights infringement as these arguments have been dismissed by the Court of Appeal.⁷

Even if successful in proving the decision was unlawful, there would be no guarantee that Flynn would receive funding for the treatment. The court may simply quash the decision not to fund the treatment and require that the decision be reviewed. If the decision-making body can come up with fair and consistent reasons for the policy, then the court would likely be satisfied.

Walter could also make an NHS complaint to the GP regarding their refusal to provide the alternative treatment on the NHS. Any complaint should usually be made within 12 months of the events complained of.⁸ If Walter is unhappy with the response to his complaint, he can refer the matter to the Parliamentary and Health Service Ombudsman.

Consent issues arising arising in relation to Flynn’s opposition to the pioneering operation

In order to lawfully proceed with the surgery, Flynn’s paediatrician requires a lawful consent to avoid criminal liability in battery and tortious liability in trespass to the person.⁹

As Flynn is under 16 years of age, he would prima facie be considered incompetent to provide the requisite consent to the surgery and, as such, the consent of his father would suffice for the paediatrician to proceed with the surgery.¹⁰

If, however, Flynn is assessed as having “sufficient understanding and intelligence to enable him……..to understand fully what is proposed” regarding the surgery, then he would be deemed competent to consent to the surgery on his own account.¹¹ This level of understanding is known as Gillick competence.

Somewhat controversially the courts have since held that a Gillick competent minor may not refuse medical treatment which the health-care professionals believe to be in their best interests, providing parental consent is in place. Any assessment of what is in Flynn’s best interests should include consideration of his wishes and the court “should respect….(his)…..integrity as a human being and not lightly override…..(his)…..decision”.¹²

In Re R (A Minor) (Wardship: Consent to Treatment)¹³, Lord Donaldson stated that, “In a case in which the “Gillick competent” child refuses treatment, but the parents consent, that consent enables treatment to be undertaken lawfully”.

Lord Donalson’s comments may be confined to cases where the refusal would lead to death or severe permanent injury and given that Flynn’s refusal to undergo the surgery would not have such serious consequences, his refusal may be accepted by the courts. In addition, there is no case law in which a Gillick competent minor’s Article 8 right to privacy and family life under the Human Rights Act 1998 have been considered by the courts. Being forced to undergo such an intrusive procedure against one’s will may well amount to a breach of Article 8 and given this dearth of case law, the paediatrician should apply to the court for a declaration as to whether the treatment would be lawful as the authorities are not clear on this point.

Analysis of potential tortious claim against the Accident and Emergency doctor

To be successful in a claim in negligence, Walter must prove on a balance of probabilities that the Accident and Emergency doctor owed Flynn a duty of care, that this duty of care was breached and that this breach caused Flynn to lose the sight in one of his eyes. If the doctor is found to be liable in negligence, her employer will be vicariously liable for her actions. As Flynn is under 18, he could not bring the claim himself but Walter could bring the claim on Flynn’s behalf by acting as his litigation friend.

Any claim in negligence must be brought within 3 years of Flynn’s 18th birthday in accordance with Limitation Act 1980, s28.

There is a clear duty of care in this case and this arises as soon as Flynn presents himself at the Accident and Emergency department.¹⁴

The standard of care to be exercised is that of “the ordinary skill of an ordinary competent man exercising that particular art”.¹⁵ Therefore, the doctor’s care will be judged in relation to the reasonable Accident and Emergency doctor and she will not be negligent if there is a responsible body of Accident and Emergency doctors who would have acted in the same manner. The standard of care Flynn is entitled to expect is that of a reasonably competent Accident and Emergency doctor.

Given that Flynn presented at Accident and Emergency, it would seem reasonable to expect him to have been examined. Expert evidence from an Accident and Emergency doctor would be needed to prove this but the failure to examine Flynn would seem to be below the standard of care that Flynn is entitled to expect and would likely amount to a breach of the duty of care. Even if a responsible body of Accident and Emergency doctors would also have failed to examine Flynn, the court can, and would be likely to hold that the failure does not stand up to logical analysis and therefore constitutes a breach of duty.¹⁶

Walter must then prove that the failure to examine caused Flynn to lose his sight. The standard test for causation in negligence is the “but for” test.¹⁷ The court would need to be satisfied that but for the failure to examine, Flynn would not have gone on to lose the sight in his eye. If Flynn would have gone on to suffer the loss of his sight in any event, a claim in negligence will not succeed.

Causation is often problematic in medical cases because it is often difficult to speculate about what might have happened had the duty of care not been breached. If Walter can prove that on a balance of probabilities, had Flynn been examined certain steps would have been taken which would have prevented him from losing his sight then causation will be made out and the doctor will be liable for his injuries. This means that it must be more likely than not that Flynn’s sight would have been saved had he been appropriately examined.

Assuming that legal causation is proven, Walter must also establish that the type of damage is not too remote. The type of damage must be foreseeable although the extent of the harm and the way in which it occurred need not be.¹⁸ As some sort of physical injury is a foreseeable consequence of failing to appropriately examine Flynn, remoteness of damage is unlikely to be an issue in this case and Flynn would recover damages for the full extent of his injuries.

Footnotes

¹Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223

²See footnote 1

³[1995] 1 WLR 898

⁴R v North Derbyshire Health Authority, ex parte Fisher (1997) 38 BMLR 76 (QBD)

⁵See footnote 4

⁶R v North West Lancashire Health Authority, ex parte A and Others [2000] 1 WLR 977

⁷See footnote 6

⁸The NHS Constitution for England Updated 14 October 2015

⁹Chatterton v Gerson [1981] QB 432 (QBD)

¹⁰Family Law Reform Act 1969 s8

¹¹Gillick v West Norfolk and Wisbech AHA [1984] QB 581

¹²Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 1 FLR 854

¹³[1992] Fam 11 CA

¹⁴Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

¹⁵Bolam v Friern Hospital Management Committee [1957] WLR 582

¹⁶Bolitho v City and Hackney HA [1998] AC 232

¹⁷See footnote 14

¹⁸The Wagon Mound [1961] AC 388