Medical law in the United Kingdom is a fascinating and complex area that sits at the intersection of legal principles, ethical considerations, and medical practice. It governs the relationship between medical professionals and patients, outlining their respective rights and responsibilities. For students of law, particularly those on the GDL or preparing for the SQE, a firm grasp of medical law is essential, as it touches upon core subjects like tort and criminal law while raising profound ethical questions about life, death, and autonomy.
💡 Key Takeaway
The core of medical law revolves around the principle of patient autonomy. A competent adult patient has the absolute right to consent to or refuse medical treatment, even if that refusal may lead to their death. This principle underpins the entire legal framework, from consent and confidentiality to negligence and end-of-life care.
The Doctrine of Informed Consent
The concept of informed consent is the cornerstone of ethical medical practice. It dictates that a patient must be given sufficient information to make a voluntary and informed decision about their treatment. For consent to be valid, it must be given by a person with capacity, be voluntary (free from coercion), and be informed.
The Test for Sufficient Information
Historically, the level of information required was judged by the standards of the medical profession itself, as established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. However, the law has evolved significantly. The landmark Supreme Court case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 shifted the focus from a doctor-centric approach to a patient-centric one.
In Montgomery, Lady Hale stated: “The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”
A risk is considered “material” if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
Medical Negligence and the Bolam Test
When medical treatment goes wrong, a patient may have a claim in negligence. To succeed, the claimant must prove that the healthcare professional owed them a duty of care, breached that duty, and that the breach caused the harm. The standard of care is the central issue in most medical negligence claims.
The Bolam Standard
The classic test for the standard of care is the Bolam test, which states that a doctor is not negligent if they have acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This principle, from Bolam v Friern Hospital Management Committee, has been a dominant feature of medical law for decades.
Modification by Bolitho
The House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232 refined the Bolam test. It held that the court must be satisfied that the body of expert opinion relied upon has a logical basis. A court can find a professional practice to be negligent if it is illogical, even if it is supported by a body of medical opinion. This gives the court the final say on the standard of care.
📝 Exam Tip
When answering a problem question on medical negligence, always start with the Bolam test and then consider the Bolitho gloss. Discuss whether the expert opinion is logical and defensible. For causation, remember to apply the 'but for' test from Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.
Mental Capacity and Decision Making
The law must protect those who are unable to make decisions for themselves. The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of adults who lack the mental capacity to do so for themselves.
The Five Statutory Principles
The Act is underpinned by five key principles:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The case of A Local Authority v JB [2021] UKSC 52 is a recent Supreme Court decision that provides important guidance on the assessment of capacity in complex situations.
| Concept | Description | Relevant Law |
|---|---|---|
| Capacity | The ability to make a specific decision at a specific time. | Mental Capacity Act 2005, s.2-3 |
| Best Interests | The checklist in s.4 of the MCA 2005 must be followed when making decisions for someone lacking capacity. | Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 |
| Deprivation of Liberty | When a person is under continuous supervision and control and is not free to leave. Requires authorisation. | P v Cheshire West and Chester Council [2014] UKSC 19 (the 'acid test') |
End of Life Decisions
Some of the most ethically charged issues in medical law concern the end of life. This includes the withdrawal of life-sustaining treatment and assisted dying.
Withdrawing Treatment
A competent adult can refuse life-sustaining treatment, as affirmed in Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429. For patients who lack capacity, the decision to withdraw treatment must be made in their best interests, often requiring an application to the Court of Protection. The leading case is Airedale NHS Trust v Bland [1993] AC 789, which established that it is lawful to withdraw treatment from a patient in a persistent vegetative state if it is in their best interests.
Assisted Dying
Assisted suicide remains a criminal offence in England and Wales under the Suicide Act 1961. However, the law in this area is highly contentious. The case of R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38 saw the Supreme Court grapple with the issue, ultimately deciding that Parliament was the appropriate forum to decide on any change in the law. The debate continues, balancing the desire for individual autonomy against the need to protect vulnerable people.
⚠️ Common Mistake
Do not confuse the withdrawal of life-sustaining treatment with euthanasia or assisted suicide. Withdrawing treatment is considered an omission to act, and is lawful if the treatment is no longer in the patient's best interests. Euthanasia (a positive act to end a life) and assisted suicide are unlawful in the UK.
Frequently Asked Questions (FAQ)
Can a child refuse medical treatment?
The law here is complex. A child aged 16 or 17 has the right to consent to their own treatment under the Family Law Reform Act 1969. A child under 16 who has sufficient understanding and intelligence to enable them to understand fully what is proposed (known as 'Gillick competence') can also consent. However, a refusal of treatment by a competent child can be overridden by the court or by a person with parental responsibility. See Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11.
What is the difference between medical negligence and a complaint?
A complaint is a formal expression of dissatisfaction about the service received, which is typically handled through the NHS complaints procedure. It can lead to an apology, an explanation, or changes in practice. A medical negligence claim is a legal action for financial compensation where a patient has suffered harm due to a breach of the duty of care. It requires legal proof of fault and causation.
Is a doctor always liable if a patient is not warned of a risk that then occurs?
Not necessarily. Following Montgomery, the doctor is liable if they failed to warn of a *material* risk. The claimant must still prove causation – that is, they must show that if they had been warned of the risk, they would not have consented to the treatment. This was a key issue in the case of Chester v Afshar [2004] UKHL 41.
What is an Advance Decision to Refuse Treatment (ADRT)?
An ADRT, or 'living will', is a decision a person can make while they have capacity to refuse specific medical treatment in the future, for a time when they may lack capacity. For an ADRT to be valid and applicable, it must comply with the requirements of the Mental Capacity Act 2005, including being in writing, signed, and witnessed if it relates to life-sustaining treatment.