Law and Medicine

Law and Medicine

The general principle is valid consent must be obtained before medical

treatment can commence. In Allen v New Mount Sinai Hospital [1980], J

linden stated ‘consent is not a mere formality; it is an important

individual right to have control over one’s body, even where medical

treatment is involved.’[1] In Schloendorff v society of New York

Hospital [1914][2], Cardozo J made a statement “Every human being of

adult years and sound mind has a right to determine what shall be done

and a surgeon, who performs an operation without his patient’s

consent, commits an assault.”

There must be some lawful justification for a medical procedure, which

would otherwise constitute the tort of battery. Battery is a form of

trespass, and as such, it is actionable par se. A battery consists of

the infliction of unlawful force on another person.

It is sometimes stated that where the patient is incapable of

consenting, an effective consent may be given by his/her spouse, or by

some near relative. Nevertheless, this can be argued, as there is no

general doctrine whereby a spouse or relative is empowered to give a

legally effective consent to medical procedures to be carried out on

an adult. There are circumstances where doctors are justified in

proceeding without the consent of the patient.

Tom was unconsciousness on arrival and was in critical condition where

his injuries were life threatening. Tom is considered temporally

incompetent because he was unconscious on arrival at the hospital.

Therefore, he could not consent to treatment at the time of the

accident. No one can consent on Tom’s behalf because he is an adult;

the a...

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...LR 582

[5] [1905] 104 NW 12

[6] [1989] 2 A.C. 1

[7] [1997] 2 FLR 426

[8] [1949] 2 DLR 442

[9] [1981] C.A. unreported

[10] [1933] DLR 260

[11] M Jones, Medical Negligence, 1997, pg 164

[12] Stauch M, Sourcebook on Medical Law, 2nd Ed, Cavendish

Publishing, 2002

[13] [1988] 2 All ER

[14] [1979] 2 All ER 620

[15] [1988] 1 Ch 449

[16] M Jones, Medical Negligence, 1997, Sweet and Maxwell

[17] [2002] 1 All ER 786

[18] [1990] 1 All ER 786

[19] [1988] 2 Al E.R. 648

[20] [1985] QB 526

[21] [1990] 1 All ER 568

[22] [1969] 1 QB 428

[23] [1997] 2 All ER 865

[24] [1957] 1 WLR 582

[25] [1995] 6 Med LR 128

[26] Khan, M, Robson M. What is a Responsible Group of Medical

Opinion? (1995) 11 Professional Negligence 4

[27] [1995] 6 Med LR 128