The Calling of a Doctor

Medicine is a noble profession and health care providers, and more so doctors, are
therefore expected to exhibit behavior that conforms to the noble profession. It has been
stated that being a doctor is first a vocation (a calling), and then secondly a profession.
The doctor must master his science in order to diagnose the illness of his or her patient
and offer the appropriate remedy. Medical ethics must be upheld. This is
professionalism; the patient must be given the correct and up-to-date medical
management and in the right milieu. But the interaction of the doctor with the patient
calls for far more than the scientific knowledge and the practice of medical ethics. The
interaction calls for qualities that if possessed and practiced by the health care provider
will ensure that patients are secure in their trust and confidence.

Doctors must be truthful at all times. This is the virtue of veracity. Doctors must not
deliberately lie to their patients, colleagues and the community at large. Least of all,
doctors must not lie in a court of law. Doctors must not be economical or mean with the
truth but are expected to be open and frank. However, they must also exercise wisdom
and discernment when the circumstances so demand. There are circumstances when
the truth may be too painful for a patient to confront at a particular time and counseling
is required. However there is no room for benevolent deception in medicine. Health care
providers should know the difference between obfuscation and compassionate provision
of information. One of the few dilemmas that confront truthfulness is when there is no
one best or correct solution to a problem.

And it is not enough that health workers must be truthful but must be courageous
enough to stand for the truth no matter what. Sometimes it calls for courage to act in the
best interest of the patient and say no to temptations that may arise in the line of duty. It
sometimes takes courage to uphold medical ethics.

Health workers need to earn the confidence of their patients in order that the patients
may disclose all the relevant personal information to the make an accurate diagnosis
and provide appropriate diagnosis. In order to do this health workers must respect the
privacy of patients and observe the highest degrees of confidentiality. It is for these
reasons that patients trust their doctors. However there may be legal obligations when
confidentiality may be breached and one of this may be when the public interest
overrides in particular circumstances. Nevertheless, every effort must be taken to
protect the patient’s information and identity.

Integrity is a quality that is a must for health care providers. This is what makes a health
care provider reliable, dependable and trustworthy. Integrity makes a health care
provider stick to his or her duty no matter what. This is the virtue that respects the
doctor-patient relationship. Integrity will distinguish between self interest, patient interest
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and conflict of interest. Integrity is what will uphold the ethical principles of patient
management. Another name for integrity is being up righteous. It’s as simple as that.

Compassion for the patient means empathy, perceptivity and sensitivity to the needs of
the patient. It also means kindness and humaneness and feeling for the patient. It is the
quality that helps separate the giving of medical care from mere application of science.
Compassion is what will drive a health worker beyond the hours of duty. It is the true
call of duty. The opposite of this is rudeness and insensitivity, ills that will alienate the
patient and have negative impact on the doctor-patient relationship.

A virtuous health worker must be able to read in between the lines and be able to
discern the real needs of the patient and the social aspects of the presentation. A health
care provider’s judgment must be spot on. A health care provider needs to know the
difference between knowledge and wisdom; knowledge is got from information (science)
and it tells the health care provider what can be done while wisdom is obtained through
experience and tells the health care provider what ought and ought not be done.

Health workers must respect their colleagues and value team work. The medical arena
is wide and with specialization and super-specialization, shared responsibility will
always be in the best interest of the patient. Part of team work and team building is the
commitment to pass on professional knowledge and skills to colleagues and a
willingness to learn from each other. This will also help a health worker self-reflect, self-
regulate and audit one’s-self professionally.

The Contract between a doctor and a patient

Not many people are aware that there exists a contract between a patient and a health
care provider and that this contract is as powerful and legally binding as any formal and
documented contract. The strength of this contract has been shown time and again in
the various legal suits brought against health care providers, be them health workers or
institutions that provide health care.

The contract between the health care provider and the patient means that the health
care provider will provide the necessary care in the normal manner according to
accepted medical procedures. This may mean treatment or referral. Failure to refer a
patient is a breach of that contract and may constitute negligence.

The contract imposes on the health care provider a duty of care and this means that the
health care provider will undertake to manage a patient or client with the amount of skill,
competence and care that may be reasonably expected from a similar and ordinary
skilled practitioner of his or her category. A cardinal principle observed in the provision

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of care is to act in the best interests of the patient at all times. In addition, the contract
also dictates that the health care worker must honor the time tested ethical obligations,
as well as the rights of the patient and must manage the patient in accordance with the
rules and regulations set by the local as well as the International professional bodies.
The law defines this duty of care as follows;

“The law imposes on a medical practitioner a duty to exercise reasonable care

and skill in the provision of professional advice and treatment. That duty is a
single comprehensive duty covering all the ways in which a doctor is called upon
to exercise his skills and judgment; it extends to the examination, diagnosis and
treatment of the patient and provision of information in an appropriate case.”

Case law is the icing on the cake; health care providers must acquaint themselves with
the relevant judgments from the courts of law especially with regard to health care
provision. Today no doctor will carry out a tubal ligation (tie a mother’s fallopian tubes)
on the grounds that a classical caesarean section has been done or a mother has had a
badly ruptured uterus when the mother has not specifically consented to the procedure
prior to the caesarean section.

A health care provider has no right to treat a patient unless the patient consents to such
a treatment. A patient has an absolute right over his or her bodily integrity and security.
The performance of a medical procedure upon a person without consent can be a
serious assault (battery in legal terms) for which the health care provider can be
criminally prosecuted and civilly liable. But the case of the ungrateful patient may give
solace to health care providers although such cases are far and wide apart.

The contract between the health care provider and the patients means that the patients
must make themselves available for treatment or management. A patient can be held
liable by the health care provider for any financial loss if the patient fails to come for a
planned appointment or surgical procedure without reasonable cause. And once
treatment has started, a doctor may not abandon his or her patient.

A doctor may not take the treatment of a particular patient to its logical conclusion if

 The doctor leaves the patient in the hands of another equally competent
practitioner.

 The patient is referred

 If the doctor issues sufficient instructions for treatment.

 If the patient refuses further treatment.

 The patient cannot receive further treatment

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The contract between a health care provider and a patient does not guarantee a cure
and as such a health care provider should not guarantee a cure otherwise a claim for
damages may be instituted if the cure fails.

When a health care provider fails to handle a patient with reasonable care and skill, the
following are taken into consideration when such a case is investigated;

 The doctor’s actual knowledge of the patient’s condition

 The seriousness of the patient’s condition

 The professional ability of the doctor to perform the task required

 The physical state of the doctor (exhaustion)

 The availability of other practitioners

 The interests of other patients of the doctor

This contract may have unforeseen obligations. The contract may even start even
before a health care provider has seen the patient. It may start when the health provider
has reviewed a referral and agreed to see the patient. The contract may also extend to
persons who are affected by the patient’s condition. Cases have been brought against
health care providers in respect of these two aspects.

The contract ends when the patient gets well and needs no further treatment, when the
patient is referred or nothing more can reasonably be done for the patient. The patient
must also be aware that legal actions are time bound.

Communicating with the Patient

The importance of effective communication for good medical practice cannot be over
emphasized. It is at the heart of every medical procedure including listening to the
complaints of the patient, seeking consent for the various processes and explaining to
the patient his or her sickness. Good communication skills helps the doctor establish
rapport with the patient and helps win the trust and confidence of the patient as these
are vital for the diagnosis and effective management of the patient’s problems. Once the
doctor wins the trust and confidence of the patient, then the patient will provide the
doctor with crucial information for correct diagnosis. Good communication will also
improve patient compliance as it helps the patient adhere to the medical advice given. It
is no wonder that effective communication improves the quality of health care.

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Effective communication decreases the likelihood of complaints and legal action if
adverse events occur. Breakdowns in communication are the most common basis for
patient dissatisfaction. Doctors are often perceived by the patients as poor
communicators or appear to be unapproachable or are unwilling to respond to the
questions or concerns of the patients. Even the tone of the doctor and the body
language can be a big turn-off for the patient. Patients often fault doctors in the following
areas;

Not listening or not appearing to listen attentively enough to their problems. The
doctor appears disinterested as the patient narrates his or her complaints.

Not providing adequate explanations to the patients. Doctors sometimes have

the wrong attitude; “I am the doctor, I know it all.”

Failure to demonstrate humaneness and understanding. Doctors must have an

attitude that must convey to the patient respect, sensitivity and empathy.

Spending very short with the patient and appearing to hurry the patient. This is
not helped by the fact that in reality, doctors are overwhelmed by patient
numbers.

A doctor’s behavior during a consultation may uphold or destroy a patient’s

confidence. A doctor must be absolutely sober during consultations. And
telephone disruptions or other distractions during a consultation are not helpful.

Effective communication is a clinical skill that must be taught and practiced and also
seen in the role models. It is a skill that is perfected over the years. One of the biggest
obstacles to learning effective communication skills is the fact that the doctors do not
appreciate the importance of effective communication and there are perhaps few role
models. Communication skills are not really taught in the medical schools and there is
therefore lack of insight into communication deficiencies.

Patients need a comfortable and secure environment that reassures them of their
privacy to communicate effectively with the doctor. A good sitting arrangement and how
to receive a patient will enhance a patient’s confidence. Doctors must put the patient at
ease and comfortable at the start of the consultation. A doctor should maintain
appropriate eye contact, be attentive and be an active listener. A prudent doctor should
avoid early interruptions but know when to tactfully guide the patient. The doctor’s
posture, gestures and body language constitute a major element of the non-verbal
communication. Doctor’s should know how to cope with language barriers. Doctors
should avoid medical jargons and use simple language that is easily understood by the
patient. And doctors must also avoid judging or criticizing the actions or behavior of the
patients according to their own personal standards or beliefs.
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Doctors should be frank and open when admitting uncertainty and especially when an
unexpected or adverse outcome occurs. The patient should be told as early as possible
that something wrong has happened. This is part of open disclosure. Care must be
taken not to imply or promise outcomes that cannot be delivered. Open disclosure
involves saying sorry and giving a factual explanation of what happened, the
consequences of the adverse event and steps required to manage the event and
prevent its reoccurrence. An expression of regret or an apology does not necessarily
constitute an admission of liability or unprofessional conduct or incompetence.

When a patient under the care of a doctor suffers harm, that patient has a right to
expect a prompt and appropriate response. Doctors in such circumstances, have a
professional responsibility to;

Act immediately to do what is possible to put matters right.

Explain fully to the patient what has happened and the short and long term
effects and where appropriate express regret.

Deal with the patient’s complaints constructively and honestly.

Co-operate with any complaints procedure or legal inquiry into the matter.

Review the problem and implement changes to reduce the risk of recurrence.

Ensure that the patient is not prejudiced against.

Understanding medical malpractice and medical negligence

The Bolam Test

In 1954, an English gentleman by the names of John Bolam was diagnosed with severe
depression and was advised to undergo a medical procedure known as Electro-
Convulsive Therapy (ECT) to treat this condition, to which he agreed. This is a standard
treatment for such a case and is generally considered one of the least harmful treatment
options. This therapy is usually given when the patients are under anesthesia and a
drug may also be given to relax the patient’s muscles.

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In the course of the procedure, Mr. Bolam, however, had violent fits and the treatment
had to be stopped. He fractured his hip during the therapy as he was convulsing. He
sued the hospital for compensation. His arguments were that; he was not given a
muscle relaxant, he was not restrained and he was not warned about the risks involved
in respect of this medical procedure. This has now become a landmark case in issues of
medical malpractice and is known as the Bolam test. This is a test for assessing the
appropriate standard of care in negligence cases involving skilled professionals such as
doctors. The Bolam test states that “If a doctor reaches the standard of a responsible
body of medical opinion, he is not negligent.”

Medical malpractice literally means bad practice of medicine. These are acts or
omissions on the part of the health care provider that cause injury or harm to their
patients or even result into death. These acts or omissions if willfully done, may lead to
criminal proceedings and if proven, the health care provider may be convicted. Most
forms of medical malpractice, however, take the form of professional or medical
negligence. Here the health care provider does not act intentionally, but fails to act in
the way a reasonable colleague in a similar circumstance would have acted. A health
care provider is expected to handle a patient with the degree of skill and care that a
reasonably skilled colleague in his or her field of medicine would have. The question
posed in determining the standard of care is how a reasonably competent practitioner in
that branch of medicine would have acted in a similar condition and whether the
likelihood of harm to the patient would have been foreseen and steps taken to guard
against the harm occurring.

Negligence is determined by establishing that there was a duty of care owed to the
patient by the health care provider and that this duty was breached and that harm
resulted as a result of this breach and that the harm was not too remote to have been
foreseen. The law also demands that this harm or damage is assessable monetarily.

There are many areas in which negligence can occur. These include; failure to disclose
risks; failure to diagnose; failure to attend; failure to provide advice; failure to refer; lack
of knowledge; lack of reasonable care; breach of confidentiality amongst others.

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Greater skill and care is expected of a specialist than a general practitioner, and is also
required where more complicated medical procedures are used. A health care worker
will be deemed to be negligent if that health worker undertakes a task that requires
specialist skill that the health worker does not have or is not trained in.

The duty of care is part of the contract between the health care provider and the patient.
In most cases the contract is between the patient and the health care unit that employs
the health care provider. Today, more often than not, health care provision is team
work. The health care provider may be directly responsible for, and to the patient, in a
private setting. Health units are often liable (vicarious liability) for the conducts of their
staff.

In the case of Mr. Bolam, the presiding Judge cautioned the jury not to give damages
based on sympathy or compassion but to give damages if they were satisfied that the
defendants had been proved to be guilty of negligence. Evidence brought forward
showed that only one case of fracture of the pelvis had occurred in fifty thousand cases
and the Judge was of the opinion that this particular injury was of extreme rarity. The
Judge also reasoned that ECT was a type of treatment that had given patients real hope
of recovery and considered it progressive science.

The Judge had this to say as a final word “But we should be doing a disservice to the
community at large if we were to impose liability on hospitals and doctors for everything
that happens to go wrong. Doctors would be led to think more of their safety than of the
good of their patient. Initiative would be stifled and confidence shaken. We must insist
on due care for the patient at every point, but we must not condemn as negligence that
which is only a misadventure.” The jury found the defendants not negligent. Mr. Bolam
lost the case.

The Bolam test has been perceived as being excessively reliant upon medical
testimony. The standard medical procedure must be justified on a logical basis and
must have considered the risks and benefits of competing options. There may be one or
more perfectly proper standards and if a health care provider conforms with one these
proper standards, then the health care provider is not negligent. The mere belief that a

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particular technique is best is no defense unless that belief is based on reasonable
grounds.

A case of medical negligence

A 51 year old mother of five died two days after a surgical operation to remove her
appendix. The health facility was sued for medical negligence. One issue court had to
address its mind to was whether the health workers were negligent in conducting the
medical operation and if the events during the operation led to the death of the patient.

Medical negligence is a legal term and for it to occur there must be a duty of care owed
to a patient and then a breach of that duty. A breach of duty in medicine is a deviation
from what a reasonable and competent health worker would have done. Further, the
breach of duty must have been the direct or proximate cause of the loss, injury or
damage. A proximate cause is one which is a natural and continuous sequence,
unbroken by any intervening event which ultimately produces the injury complained of
and without which the injury would not have occurred.

For medical negligence to be proved in a court of law, it must be shown that a usual and
normal medical practice exists and this usual and normal medical practice was deviated
from. It must also be shown that what was done instead of the usual and normal
medical practice was what no professional or ordinarily skilled health worker would have
done. A doctor is not guilty of medical negligence if he or she has acted in accordance
with a practice accepted as proper by a responsible body of medical persons skilled in
that act. However challenges exist if more than one practice is considered usual and
normal.

In this particular case, the facts admitted before court were that the patient was well
before the surgery, save for the appendicitis. The patient was examined and declared fit
for surgery. At the beginning of the operation, the anesthetist had challenges in inserting
the tube for oxygen in the trachea of the patient. The monitors had not been switched
on and when the doctor made the first incision, he realized that the patient’s blood was
dark in colour unlike the normal bright red. The team operating on the patient then
discovered, to their dismay, that the patient’s heart had stopped. They however
succeeded in reviving the heart and continued with the operation. Unfortunately the
patient had suffered severe brain damage during the operation. The patient did not
regain consciousness after the operation and died two days later.

The patient was admitted by a doctor working in the hospital, which hospital was duly
registered to offer health services including surgical operations. The hospital therefore

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clearly owed the patient a duty of care after admitting her. The negligent acts
complained of were failure to switch on the monitors before the start of the operation,
failure to properly insert in the tube for oxygen, failure to monitor the vital signs of the
patient and failure to transfer the patient to an intensive care unit. The lawyer for the
family submitted to court that the cause of death was heart and lung failure caused by
brain death due to lack of oxygen. This was primarily because the patient was placed
under anesthesia without external oxygen. Although the ventilator machine had been
installed, the medical team did not attach a pulse oxymeter and was therefore unable to
detect in time that there was no oxygen supply to the patient, most probably due to a
faulty intubation. Having found that intubation was difficult after three attempts, the
operating team failed to devise alternative means to give the patient oxygen even when
these alternative methods were readily available. The lawyer concluded that the medical
team in this particular case failed to meet the standard of care expected and were
therefore negligent.

The lawyer for the hospital contested the cause of death that was documented since the
method used to determine it did not take into account the fact that the patient spent two
days in the ward after the operation. The method used was clinical observations and not
a postmortem which is the gold standard in establishing the cause of death. The
possibility of intervening causes was never ruled out and the procedure used in the
death audit was very unreliable considering that it focused only on the procedures
immediately before and during the operation but ignored those after the operation.

The argument before court was whether the acts complained of were truly responsible
for the death of the patient or whether there were some other factors which contributed
significantly to the death other than the acts complained of. Court hence had to address
its mind to the issue of causation of death.

The defense
On 10th September 2015, a 51 year old mother of five underwent a surgical operation to
remove her appendix but never recovered from the surgery; the surgeon confessed that
the patient had suffered a severe brain damage at the beginning of the operation when
the anesthetist had challenges in inserting in her trachea the tube to administer
anesthesia and oxygen during the operation. The patient was in a vegetative state
during and after the operation and was declared dead two days after the operation. The
registered trustees of the hospital were sued for medical negligence but their lawyers
put up a spirited fight.

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The patient was relative of one of the hospital administrators. The patient had been
examined by a doctor in the hospital two days prior to the surgery and the doctor
recommended that the patient be admitted in the private ward. The patient, however,
failed to report to the ward as directed. The patient came for the surgery directly from
the relative’s home in the hospital staff quarters. The defense told court that the
patient’s death was due to a natural turn of events caused by her own negligence and
refusal to take medical advice. This death could not be attributed to the negligence of
the medical team who were so highly skilled and well trained in their various practices.
To the defense team, the death of the patient was due to multiple complications that
could only have been established by a postmortem examination. None was carried out.
The relatives of the patient did not also bother to request for a postmortem. One of the
witnesses during cross-examination told court that a postmortem examination must be
done in all cases especially when the cause of death cannot be ascertained. And in this
case, a postmortem should have been done in view of the fact that the patient
absconded from the hospital and was therefore not professionally managed prior to the
operation.

The complainants in the case relied on the certificate of death issued by the hospital
and an audit carried out by the doctors in the hospital. The defense contested the
findings in the death certificate. The death certificate was issued based on clinical
diagnosis and stated that the death of the patient was caused by heart and lung failure
as a result of brain death. The brain death was attributed to lack of oxygen which
occurred during the difficult intubation. The lawyers pointed out that the patient spent
two days on the ward after the operation and intervening factors needed to be ruled out
as the cause of death by way of a postmortem or third party expert opinion.

The defense lawyers also told court that the audit of the patient’s death carried out by
the hospital was not professionally conducted and they therefore questioned its legality
and integrity. The hospital audit report was based on what transpired in the theatre and
did not include what happened before the operation and on the ward the two days
following the operation. The lawyers cited conflict of interest on part of the team that
audited this death. Some of the members of the audit team were also part of the
surgical team that carried out or intervened in the surgery and could, therefore, not have
been said to be objective. The audit did not consider or mention that the patient was not
on the ward when she was admitted and how this could have impacted on the
operation.

Another line of defense was that complications are part and parcel of every surgery and
that every medical procedure is not without its risks. Indeed one witness told court that
complications that arise during surgery include heart failure, respiratory failure and
failure to insert the tube for oxygen and anesthesia.

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In law it is well established that a doctor cannot be found negligent merely because, in a
matter of opinion, he made an error of judgment. When there are two responsible
schools of thought about management of a clinical situation, the court could do no
greater disservice to the community or advancement of medical science than to place
the hallmark of legality upon one form of treatment. To the defense lawyers what
happened in theatre was an error of judgment not amounting to medical negligence.
The lawyers told court that when the surgical team realized that the patient was not
receiving adequate oxygen during the operation and the patient’s heart had stopped,
they adopted the best medical practice and started resuscitating her which is the
expected medical practice under such circumstances.

The defense team also pointed out that the dangers of the surgery were elaborately
explained to the patient and the patient voluntarily gave consent to the operation and
the evidence of this was the consent form that was duly signed by the patient.

Establishing the legal responsibility for a death

In establishing the medical cause of death, a medical doctor is required to state the
cause and mechanism of death. The cause of death, in medicine, is defined as the
initial disease or injury responsible for a death. The mechanism of death is how that
disease or injury led to death. A simple and straight forward example is how death may
occur following a malaria infection. The malaria parasite attacks the red blood cells
causing them to burst. This causes anaemia (lack of blood). The loss of blood strains
the heart, causing it to fail. In such a case, the cause of death is the malaria infection
but the mechanisms of death are the anaemia and subsequent heart failure. A blow on
the head may lead to bleeding within the cranial cavity with a resultant increase in the
pressure within the cranial cavity. This is known as increased intra-cranial pressure
whose effects can then directly result into death. In such a case, the medical cause of
death is blunt force trauma to the head and the mechanism of death will be the
increased intra-cranial pressure.

Establishing the legal responsibility for a death, however, goes beyond simply
determining the medical cause of death. The law considers the concept of causation
which is defined as the causal relationship between conduct and the result; causation
providing the means of connecting conducts with the resulting effect, typically an injury.
In law the more predictable the outcome, the greater the likelihood that the accused
caused the injury intentionally. Causation in law means that there is a natural flow to the
events, that a reasonable person in the same situation would have foreseen the
consequences as likely to occur and that the injury was a direct result of the breach of
duty.
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In a recently decided case, a patient was operated on 8 th September, 2015 and died two
days later, on 10th September. One of the legal arguments presented in this case was
there was a significant degree of remoteness between the operation and the death and
that other significant factors may have contributed to the death, which were not ruled
out by a postmortem examination. The function of the law of causation in this case was
to establish if indeed the death was the result of actions and omissions during the
surgery or if there were independent factors other than the acts and/or omissions during
surgery that led to the death. The crucial question in this case was whether death would
not have occurred but for the actions and omissions during surgery. The method in law
for establishing responsibility is the “but-for” test which poses the question, “But for this
particular action or omission, would the harm, injury or death have occurred?”

In law, if at the time of death the effects of the original act or omission are still an
operating and substantial cause, then death can properly be said to be the result of the
act or omission, even if some other cause of death is still operating. If however it can be
said that the original act or omission is merely the setting in which another cause
operates, it can be said that the death did not result from that act or omission. If the
second factor is so overwhelming as to make the original act or omission merely part of
history, then the law will conclude that death did not flow from the initial act or omission.

In this particular case, court observed that the patient had suffered brain death due to
prolonged lack of oxygen following improper insertion of the tube to deliver oxygen to
the patient at the beginning of the operation. Two witnesses confirmed to court that the
patient was brain dead even before she was taken off the operating table in theatre.
She remained in this irreversible state for the next two days until her death. To court the
patient became brain death as a result of negligent acts during the surgery. To the
judge that there could be some other intervening cause remained a remote, fanciful but
not in any way a probable possibility. In light of the evidence before court there certainly
was no evidence of a supervening cause of such a nature as was capable of breaking
the chain of causation.

Court was therefore satisfied that the family of the deceased had proved to the required
standard that negligence during the surgical operation was an operating and substantial
cause of the deceased’s death. To court, even if some other cause of death could also
have been operating, which had not been proved anyway, the patient’s death could only
be attributed to the negligent acts and omissions during the surgery. Court awarded the
family of the deceased ninety million Uganda shillings and costs of the suit instead of
the one billion shillings the family prayed for.

Wrong diagnosis lands doctor in jail

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On 5th June 2009, a 42 year old painter, living with his mother, died within a few hours
after being attended to by a medical doctor at their home. One week prior to his death
the patient had became restless and began drinking huge quantities of water. Both the
patient and his mother thought the patient had caught heat stroke. However on 4 th June,
the patient’s condition worsened; he became confused and his speech incoherent. The
patient went into a state of stupor and his mother noticed that her son’s breathing was
erratic and his eyes were sunken and his breath had a queer smell.

Seeking medical help

At 5:50 pm on 4th June 2009, the patient’s mother than rang a health care provider that
apparently knew that the patient had a history of anxiety and depression. She described
the patient’s condition to the triage nurse. The nurse asked her about the patient’s
depression but she told the nurse that although the patient had had episodes of
depression, the patient had never had a condition like this before. In her own words, the
patient’s mother told the nurse “if this is depression, then l have never seen one as bad
as this”. The patient’s mother had expected her son to be taken to hospital and had
even packed a bag for him. The health care provider sent a doctor to see the patient at
home.

The doctor

The doctor sent was a locum doctor, a stand-by doctor, who worked when other
doctor’s were on holiday. The mother was later to tell court that the doctor did not have
any equipment on him and did not examine the patient. The doctor diagnosed that the
patient was depressed and advised that the patient’s General Practitioner see the
patient the following day to review the patient’s medication. The patient’s mother even
asked the doctor if her son had an infection and specifically if he might be diabetic. The
doctor shook his head to all these questions.

After the doctor left, the patient’s mother gave her son something to drink but he could
not swallow. Later that night, the patient appeared so dehydrated to the mother that she
gave him an ice cube at 1 am. She returned at 6 am to find the patient dead in bed. An
inquest into this death was instituted and the police were asked to carry out further
investigations. Eventually the doctor appeared in a criminal court.

Expert Opinion

A professor of medicine who reviewed the case told court that he considered the
patient’s state of confusion, thirst, sunken eyes, peculiar breath, and inability to answer
as classic symptoms of diabetic keto-acidosis. The professor told court the doctor
should have checked sugar levels in the patient’s blood or urine and should have
immediately have the patient admitted in hospital where he would have been treated
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and saved. Another professor of clinical diabetes described the accused doctor’s
records as grossly deficient and said the doctor could and should have measured the
patient’s blood sugar which would have taken less than a minute. According to this
professor the failure to diagnose the patient’s condition was the main cause of death.
The doctor even admitted before court that he had a blood-sugar testing kit in his car
which he failed to use.

Sentence

The doctor was sentenced to two-and –half years for manslaughter. The judge’s
comments as follows

“The nature of your offence is too serious for anything other than a custodial
sentence. You failed to recognize the patient’s condition despite the fact that all
the classic signs of a diabetic condition were present. You opted for a diagnosis
that was contrary to all the evidence. This was a gross breach of your duty of
duty of care. An expert called your diagnosis appalling. I agree. It was clearly
criminally negligent and a wholly preventable death.”

The ungrateful patient

On 8th February 1949, a very sick young man by the names of Klovis Njareketa, aged
24 years, was admitted to Mulago Hospital, with a swelling of one of his legs. When an
X-ray of that leg was taken, the doctors diagnosed that the swelling was as a result of a
cancer and was spreading. The patient’s condition continued to deteriorate over a
period of twenty days and the doctors were of the opinion that the cutting off
(amputation) of that leg was essential to save the young man’s life. On Monday, 28 th
February, a senior African Assistant Medical Officer explained to the patient the gravity
of the situation and what must be done to save his life. The patient consented to the
operation, which was then scheduled for Thursday, 3rd March. However, the father of
the patient visited him that morning and advised his son against undergoing the
operation. By Wednesday, the patient’s condition had worsened and the surgeon, Dr.
McAdam, decided that an immediate operation very necessary. The patient declined.
This decision was reported to the surgeon, who nevertheless, directed the operation to
proceed on “humanitarian considerations”. The surgeon was also of the opinion that the
patient was not in a fit enough state to make up his mind. The operation went ahead
and the patient’s leg was cut off. The patient improved and was later discharged. He
however sued the surgeon and the Director of Medical Services, the employer of the
surgeon. The patient claimed damages in respect of the operation performed on him by
the surgeon, an operation he did not consent to, but done at the insistence of the
surgeon.
15
The learned trial Judge, on evidence, found that patient did give his consent to the
amputation a day or two before the operation but that subsequently he retracted his
consent and consciously and expressly refused the operation. The Judge held that the
surgeon who performed the operation did in fact commit a trespass to the person of the
patient and awarded damages and costs to the patient. An appeal was filed against the
Judge’s decision. The appeal was on the grounds that the Judge had erred in holding
that the patient had withdrawn his consent to the operation and that the patient had
suffered any damages. The surgeon was also dissatisfied with the amount of damages
awarded to the patient and this was also one of the grounds of the appeal.

The Court of Appeal was, however, satisfied that the trial Judge was right in holding that
the surgeon had committed a technical trespass against the patient. The grounds of this
decision was that the surgeon was not present at the bedside of the patient when the
African Medical officer spoke to the patient on the morning of the operation and had no
medical evidence to say that the patient was not in a fit enough state to make up his
mind.

The surgeon at the initial trial had stated “the patient would most certainly have died; he
was dying, he could not have possibly survived for more than14 days (without the
operation)”. No contrary or rebutting evidence was presented by the patient and there
was no suggestion of negligence on part of anyone at the hospital.

The patient told the court that before the amputation he had a flourishing milk
distribution business but because of the action of the surgeon of amputating his leg to
render him a disabled person, he was unable to earn enough to keep his wife and
children.

The appeal court noted that the patient was very much alive and apart from his
disability, he was in excellent health. Court also noted with concern that it seemed to be
beyond the mental comprehension of the patient to understand that had it not been for
the decision of the surgeon to amputate his leg, the patient’s children would be
fatherless and his wife a widow. Court was upset that instead of the patient expressing
gratitude to the surgeon, the patient was now pressing for payment from the doctor for
the injury purportedly done to him. Court could hardly find similar cases as this and it
seemed to be because there must be very few people like Klovis Njareketa (the patient)
anywhere in the world who would have the audacity to come to court for a claim against
a doctor in such circumstances as these. Court reasoned that had the operation not
been performed, the patient would, at most, have lived seriously ill for a fortnight.
However because of the surgeon’s courage and professional skill, the patient was alive
and well and inconvenienced as he may have been, he was by no means suffering from
anything approaching total disability. Court concluded that the patient therefore
suffered no damage by reason of the trespass and drastically reduced the damages
16
earlier awarded to the patient to one cent. This, to court, was necessary to protect
doctors from unscrupulous claims of this nature.

Sterilization without Consent

A woman, while carrying her first pregnancy, went into labour but failed to have a
normal delivery. The labour was unduly prolonged and the doctor, attending to her,
failed to deliver the child by the use forceps even when he tried two times. At this time
when the mother was in labour and the labour was not progressing normally but with
obvious challenges, the husband of the woman, at the request of the doctor, signed
permission for a Caesarean operation and any further surgical procedure found
necessary by the attending doctor. The doctor was later to tell court that at the time the
consent for the operation was signed, he mentioned to the husband of the woman the
possibility of sterilization and the husband was satisfied with his consultant and with this
procedure if he (the doctor) found it necessary

The doctor, after obtaining a signed consent from the husband of the mother, delivered
the baby through a Caesarean Section. In the course of the operation the doctor,
however, discovered that there were a number (probably ten), of tumors of the uterus,
also known as fibroids, in the wall of the mother’s uterus but of different sizes. They
varied in size from that of a pea to that of the size of a thumb. The doctor, after
consulting with another doctor who was assisting him during the operation, decided to
and tied the fallopian tubes of the patient to prevent the mother from undergoing the
hazards of a second pregnancy. This is permanent sterilization. The mother sued the
doctor for this allegedly unauthorized procedure.

The law was clear that in respect to such an operation, if it was necessary as opposed
to being convenient, for the protection of the life or even for the preservation of the
health of the patient, the doctor was entitled to carry out the intended procedure. Court
was in no doubt that the mother would have encountered challenges with a second
pregnancy such as a possible rapture of the Caesarean scar and the possibility of the
regression of the fibroid tumours, thus weakening the wall of the uterus.

The question court had to decide was whether the doctor was justified in carrying out
the additional procedure of tying the Fallopian tubes at that particular time of the
operation for fear of some future hazard to the patient, especially without the consent of
the patient. To the doctor the procedure may have been convenient or desirable, to
prevent such possible danger in the event of a contingency that may or may not occur.
To court another question, in the same breath, was whether in reality the decision about
17
such a future risk should not have been left to the patient. Court also wondered if under
the circumstances, it would not have been reasonable to postpone such an operation.

Court was aware that there are times under circumstances of emergency when doctors
must exercise their professional skill and ability without consent of the patient, which
would normally be required in the ordinary case. Court, however, recognized that a
patient is entitled to an examination, a diagnosis and advice from a doctor and that
thereafter it is for the patient to determine what, if any, operation or treatment should be
proceeded with. A judge once put it this way, “No amount of professional skill can justify
the substitution of the will of the doctor for that of his patient”.

In this particular case the point to the trial judge was whether at that material moment
and point in time it was really necessary that the Fallopian tubes be tied, not whether it
was more convenient to tie them. To the judge the effect of the procedure was to
deprive the mother of the possible fulfillment of one of the great powers and privileges
of her life. To the judge, although the possibility of the mother exercising that power or
privilege may well have put her at risk, there was no justification for an immediate action
or the urgency. The judge also noted that there was no evidence that the fibroids were
an immediate danger to the health or life of the mother at the time of the operation. The
only evidence was that the fibroids could constitute a hazard in the event of another
pregnancy. Court ruled that the tying of the mother’s Fallopian tubes without her
consent and in the manner and time it was done at constituted a trespass on her person
without her consent. Judgment was accordingly entered in her favour.

A Surgeon’s Dilemma

A surgeon, while carrying out an operation for a hernia, discovered that the patient had
a diseased left testicle. The surgeon, without the consent of the patient, removed the
patient’s left testicle while the patient was under the influence of a general anesthetic
agent, and was therefore unable to consent to that particular procedure. The patient
sued the surgeon for medical negligence and also assault that occurred during the
surgical operation. The patient, further, alleged that the doctor was negligent in
diagnosing the case, and not informing him that it might be necessary, in treating the
hernia, to remove his testicle. The act of removing the testicle without the express
consent of the patient was what was presumed to have constituted the assault upon the
patient. This was therefore a case about the legal responsibilities of a surgeon, who
when operating for one condition discovers one which he had not foreseen but which, in
his opinion, endangers the health and life of the patient.

18
Court found that, as a matter of fact, the patient had not expressly consented to the
removal of his testicle and there had been no implied consent to that effect in the
conversations that took place between the patient and the doctor before the operation.
Court therefore had to decide if, in the circumstances, the surgeon was responsible for
the consequences of the extended operation and whether he was justified in performing
it. Court, in deliberating the matter, stated that the justification was to be found either in
consent implied by the circumstances which arose or in some other principle founded
on philanthropic or humanitarian considerations including acting in the patient’s best
interest.

The attention of court was drawn to the development of informed consent as an ethical
and legal principle. Informed consent is based on the legal, moral and ethical notion of
respect for personal autonomy. One’s personal integrity may not be violated without
one’s consent. The law considers that the first right of a citizen is the right to the
inviolability of his person. In the specific context of medical care, this principle ordinarily
means that, for medical treatment to be lawful, the patient must have agreed to it. This
implies that a surgeon who has been asked to examine, diagnose, advice, and treat a
patient, cannot without the patient’s permission, violate the patient’s bodily integrity by a
major operation, placing him under an anesthetic for that purpose, and operating on him
without his consent or knowledge.

A more complex situation arises where a person agrees to a proposed treatment or

procedure but claims that the information which led to the agreement was inadequate.
Such a claim lies in negligence and is based on the argument that, by failing to disclose
certain information, the doctor has breached a duty of care to the patient. The claim of
lack of informed consent does not deny the existence of consent; such a claim
challenges the adequacy of information on which the patient’s agreement was based.

Court was persuaded not to apply this rule too strictly from practical considerations. Two
scenarios were presented before court; if, in a case, a person should be injured and
rendered unconscious and his injuries were of such a nature as to require prompt
surgical attention, a surgeon would be justified in applying such surgical treatment as
might reasonably be necessary for the preservation of the patient’s life without his
express consent. And if, in another case, in the course of an operation to which a
patient had consented, the surgeon should discover conditions not anticipated before
the operation commenced, and which, if not removed, would endanger the life or health
of the patient, the surgeon would be justified in extending the operation to remove or
overcome them, though no express consent to the extension of the operation could be
given in the nature of the circumstances. In such an emergency the surgeon would not
be responsible unless the patient had expressly forbidden any extension of the
operation.

19
Court came to the conclusion that the surgeon had, indeed, after he had commenced
the operation, discovered conditions neither he or the patient had anticipated and which
could not have been reasonably foreseen and that in extending the operation, the
surgeon acted in the best interests of his patient and for the protection of his health and
possibly his life. The judge concluded that the removal of the testicle was, in that sense,
necessary and it would be unreasonable to postpone its removal to a later date.

Eye Operation Gone Horribly Wrong

Maree Lynette Whitaker was blind in the right eye following a penetrating injury to that
eye at the age of nine years. Despite this early misfortune, she continued to lead a
substantially normal life. She completed school, got employed, married and raised a
family. In 1983 Maree decided to have to have an eye examination, nearly forty years
after the initial injury. Her general practitioner referred her to an ophthalmic surgeon,
who prescribed reading glasses and referred to another specialist, Dr. Christopher
Rogers, for possible surgery on her right eye. On 22 nd May 1984, Maree followed up the
referral and was examined for the first time by the surgeon. The surgeon advised her
that an operation on the right eye would not only improve its appearance, by removing
the scar tissue, but would probably restore significant sight to the eye. Three weeks
later, during the second consultation, Maree agreed to submit to the surgery.

However, before the surgery, the patient incessantly asked the doctor as to, among
other things, possible complications. She was, to the doctor’s knowledge, keenly
interested in the outcome of the suggested procedure, including the danger of
unintended or accidental interference with her good left eye. On the day of the surgical
operation, the patient even asked whether something could be put over her good eye to
ensure that nothing happened to it. An entry was made in the hospital notes to the effect
that the patient was apprehensive that the wrong eye would be operated on. She did
not, however, ask a specific question as to whether the operation on her right eye could
affect her left eye.

After the operation, it appeared that there had been no improvement in the right eye but,
more importantly, the patient developed inflammation in the left eye, a complication of
the operation known as sympathetic ophthalmia. This condition does not always lead to
loss of vision but, in this case, the patient lost sight in the left eye. And as the sight in
her right sight had not been restored in any degree by the surgery, she was thus almost
totally blind. There is evidence that this condition of sympathetic ophthalmia occurs
once in approximately 14,000 such procedures, although there was also evidence that

20
the chance of such occurrence was slightly greater, as here, where there had been
penetrating injury to the eye operated upon.

Maree sued the doctor for medical negligence. Key in the case was the allegation that
the doctor’s failure to warn the patient of the risk of sympathetic opthalmia was medical
negligence which resulted in the near total blindness of the patient. The surgeon
confessed before court that sympathetic ophthalmia was not something that came in his
mind to mention to the patient. While court was not satisfied that proper medical
practice required that the doctor warn the patient of the risk of sympathetic ophthalmia if
she expressed no desire for the information, court also concluded that a warning was
necessary in the light of her desire for such relevant information.

There was no dispute before court as to the existence of a duty of care on part of the
doctor to the patient. The law imposes on a medical practitioner a duty to exercise
reasonable care and skill in the provision of professional advice and treatment. That
duty is a single comprehensive duty covering all the ways in which a doctor is called
upon to exercise his skill and judgment. This extends to the examination, diagnosis and
treatment of the patient and the provision of information in an appropriate case. The
issue before court was whether the failure by the doctor to inform the patient of the
patient of the danger of sympathetic ophthalmia as a possible result of the surgical
procedure carried out constituted a breach of the duty the doctor owed the patient and
therefore medical negligence?

The legal principle used to resolve this issue was that a doctor is not negligent if he acts
in accordance with practice accepted at the time as proper by a responsible body of
medical opinion even though other doctors adopt a different practice. Before court there
were two medical opinions; one body of reputable medical practitioners stated that in
the circumstances of the case they would not have warned the patient of the danger of
sympathetic ophthalmia. There was also however evidence from another group of
similarly reputable medical practitioners that they would have given such a warning.

The Risks Patients Need to Know:

When Maree lost sight in both eyes after the eye surgery went horribly wrong the
question for court to decide was what risks she needed to have been informed of or
needed to know in order to make a truly informed decision to undergo or forego the
prescribed surgery or other treatment.

21
A court of law will find a doctor negligent if the doctor fails to exercise the ordinary skill
of a doctor practicing in the relevant field; and in this case whether another doctor would
have informed the patient of the danger or risk of sympathetic ophthalmia, a remote
side-effect of the surgery. Courts have, however, always recognized that in matters
involving medical expertise, there is ample scope for genuine difference of opinion and
that a practitioner is not negligent merely because his or her conclusion or procedure
differs from that of other practitioners. Court, in this case, found itself on cross-roads in
deciding whether failure to warn the patient of inherent risks of the eye surgery
constituted negligence. Before court there were, however, two divergent opinions from
experts.

In this case the doctor was treating and advising a woman who was almost totally blind
in one eye. There was no doubt that the operation posed several risks, some more
common than others. Sympathetic ophthalmia was, however, the only danger that was
capable of rendering both eyes sightless. Experts described this complication as a
devastating disability. The surgeon acknowledged before court that, except for death
under anesthesia, this complication was the worst possible outcome for the patient.

The law recognizes that a doctor has a duty to warn a patient of a material risk inherent
in a proposed treatment. A risk is material if, in the circumstances of the particular case,
a reasonable person, in the patient’s position, if warned of the risk, would be likely to
attach significance to it. A material risk is also described as that a medical practitioner
should be reasonably aware of that a particular patient, if warned of the risk, would likely
attach significance to it and therefore warrant the patient being warned of that

One view offered to court was that the patient should only have been told of the danger
of sympathetic ophthalmia if she specifically asked about it. Court rejected this view as
the patient made clear her concern that no injury should befall her one good eye. Court
was satisfied that it would be reasonable for a person with one good eye to be
concerned about the possibility of injury to that eye from the surgery.

Another issue was that instead of solely relying on the views of medical experts, it was
the responsibility of court to decide whether the information given to the patient was
sufficient to alert the patient of the possibility of serious harm of the kind in fact suffered.
The issue of how much information a doctor can give a patient must be in the patient’s
best interest, the so-called therapeutic privilege, an opportunity afforded to the doctor to
prove that he or she reasonably believed that disclosure of a risk would prove damaging
to the patient.

One judge, however, ruled that the cardinal issue is what the law requires; the law
requires that a doctor give the patient relevant information to make his or her mind to

22
accept or reject the proposed treatment. This is hinged on the duty to warn the patient
of material risks, that is, one to which a patient is bound to attach significance.

In cases of non-disclosure of risk and provision of advice and information, it is for the
courts to adjudicate on what is the appropriate standard of care after giving weight to
the paramount consideration that a person is entitled to make his own decisions about
his life.

Courts have also stated that the amount of information or advice which a careful and
responsible doctor would disclose depended upon a number of factors; the nature of the
matter to be disclosed, the nature of the treatment; the desire of the patient for
information; the temperament and health of the patient; and the general surrounding
circumstances.

In the opinion of court the patient would not have undergone the surgery had she been
advised of the risk of sympathetic ophthalmia. The surgeon was thus found to have
been negligent and the patient was awarded substantial damages and costs of the suit.

Understanding What Consent for Medical Treatment Means

Informed consent is a choice a patient makes in respect of a proposed advice, be it a

treatment plan or a surgical intervention, after receiving appropriate and adequate
information about the medical condition and the proposed intervention. It is important
that the patient understands the information and uses it to make a decision, which may
be to accept or reject the proposed intervention. The information given to the patient
should include risks and dangers of the proposed intervention. It is for this reason that
informed consent is sometimes referred to as shared decision making or the duty to
disclose. It arises out of respect for the autonomy of the patient. A patient may sue a
health-worker for assault or battery if one touches the patient or a specific part of the
patient without the patient’s express consent.

For a patient’s consent to be valid it must be given freely, willing and when the patient is
of sound mind. In this respect the patient must be competent to consent and the
Information should be given to the patient in a language and terms that the patient can
comprehend. For a patient’s consent to be legally valid it must be based on adequate
information given to the patient and should be specific for the proposed procedure or
treatment. The patient’s comprehension of the information given should also be
reasonably attested.

There are different main forms of consent; written consent, oral or verbal consent, the
‘no objection’ consent and the implied consent. All these different forms of consent

23
should be witnessed and one of the witnesses should be a health-worker. For surgical
or invasive procedures or treatment with potentially serious side-effects, it is important
that a patient should be fully informed and the consent should be in writing. Even where
oral consent is obtained, it is wise to make a note of this in the patient’s file. When a
patient withdraws consent, health-workers should not continue with the treatment or
intervention but seek a second opinion and have the patient counseled.

Health-workers should learn the art of effective communication with their patients. This
enables them to get informed consent from the patients. It is virtually impossible for
health-workers to get written consent for all the medical processes but the health-worker
should explain and get a verbal consent or a no-objection consent when taking history
or examining a patient, or when carrying out laboratory investigations or giving
medications with potentially serious side-effects. Patients also need to be informed and
consent obtained when information got from them may be released to third parties. This
is particularly important in forensic consultations and examinations where the findings
may be presented to or discussed in an open court of law or when the patients are
subjects of research.

Doctors may choose to withhold information regarding the risks of a proposed treatment
or procedure or information regarding a particular diagnosis or prognosis of a disease, if
in the opinion of the doctor the information may harm the patient. This is known as
therapeutic privilege and it is based on the principle that a doctor should always act in
the best interests of the patient and do no harm to the patient. Some courts have
accepted the principle of withholding information from patients but one school of thought
considers this principle paternalistic and not in accord with the respect for a patient’s
autonomy. To withhold information from a patient may increase the patient’s anxiety and
may undermine the patient’s confidence in the doctor. The onus is on doctors who
withhold information from patients to prove to court, when faced with litigation, that they
believed on reasonable grounds that giving the patient that particular information would
pose a significant risk of serious harm to the patient’s physical or mental health. It is not
enough that the patient may be alarmed or distressed by the information.

Elements of Valid Consent

For consent to be valid, it needs to:

 Be freely given; this includes avoiding pressuring patients through failure to

provide sufficient time for the patient to consider matters or failing to recognize
other pressures (for example from family)

 Involve disclosure by the doctor of sufficient information including material risks.

24
  Be specific for the proposed procedures- the catch phrase “any other procedures
that may be deemed necessary” should only be relied on to undertake
unforeseen and urgent procedures and, if the phrase is used, a note should be
made of the matters discussed under it.

 Be given by a person who is competent to consent. This will ordinarily be the

patient unless the patient is believed to be not competent

 Involve some assessment or indication that the patient has an understanding of

the proposed procedure or treatment

No guidance exists in relation to how long consent, once given, remains valid. If
significant time has elapsed between obtaining consent and commencement of
treatment, the existence of valid consent should be confirmed.

Contraceptives for Minors; what does the law say?

In 1980, the then Department of Health and Social Security (DHSS), a Ministry of the
British Government, issued a circular that advised doctors that they could give
contraceptives to children under the age of 16 without parental consent or knowledge. A
one Mrs. Victoria Gillick, a mother of ten, including five daughters, began a campaign
against these guidelines. She went to court seeking a declaration that none of her five
daughters aged 1 to 13 years could be prescribed or advised on birth control until they
were 16 years. She also attempted to prevent the DHSS from distributing the circular
issued regarding contraceptives for the under 16s. Mrs. Gillick sought a declaration that
prescribing contraception was illegal because the doctor would commit an offence of
encouraging sex with a minor, and that it would be treatment without consent as
consent is vested in the parent. The lawyer for Mrs Gillick argued the act of giving
contraceptive advice or treatment was "very close" to the criminal offence of aiding and
abetting unlawful sexual intercourse. However the Judge in his initial ruling against Mrs
Gillick stated "I would regard the pill prescribed to the woman as not so much the
'instrument for a crime or anything essential to its commission,' but a palliative against
the consequences of the crime."

This matter subsequently went to the House of Lords. The issue here was specifically
when children could give consent. In the absence of patient consent to treatment, a
doctor could easily be sued or accused of assault or battery. The House of Lords held
that in some circumstances, a minor could consent to treatment, and that in these
circumstances a parent had no power to veto treatment. Lord Scarman, in his judgment,
stated what is now considered as a test of “Gillick competency”
25
"As a matter of Law the parental right to determine whether or not their minor child
below the age of sixteen will have medical treatment terminates if and when the child
achieves sufficient understanding and intelligence to understand fully what is
proposed."

This ruling means that the authority of parents to make decisions for their minor children
is not absolute, but diminishes with the child’s evolving maturity. And this is not limited
to medical decisions alone. Today a child deemed “Gillick competent” will be able to
prevent his or her parent from viewing their medical records or medical staff making a
disclosure of these records unless there is an express consent of the child.

Lord Fraser, in his judgment of the Gillick case, in the House of Lords, gave out
guidelines that apply specifically to contraceptive use. Following this ruling, it is now
lawful for doctors to provide contraceptive advice and treatment without parental
consent, provided certain criteria are met. These criteria are known as the Fraser
Guidelines. The guidelines state that a doctor could proceed to give contraceptive
advice and treatment to a minor provided s/he is satisfied in the following criteria;

 The young person will understand the advice given

 The person is not persuaded to inform their parents

 The young person is likely to begin, or continue having, sexual intercourse with
or without contraceptive treatment

 Unless the young person receives contraceptive treatment, their physical or

mental health, or both, are likely to suffer

 The young person’s best interests require them to receive contraceptive advice
or treatment with or without parental advice.

Lord Scarman however stated that it is not enough that the child should understand the
nature of the advice which is being given; she must also have a sufficient maturity to
understand what is involved. These guidelines apply not only to doctors but other health
workers.

Professionals working with children need to consider how to balance children’s rights
and wishes with their responsibility to keep children safe from harm. Underage sexual
activity is an indicator of child sexual abuse. In Uganda, sexual activity with a person
under the age of 18 is a very serious offence that can attract the death penalty.

However, if a person under the age of 18 refuses to consent to treatment, their parents
or the courts can overrule their decision on the grounds that the welfare of the young
person is paramount. These are the cases in which the young person is likely to suffer

26
grave and irreversible mental and physical harm. When a parent wants to overrule a
child’s decision to refuse treatment, the health workers will apply to the courts for a final
decision.

From Wikipedia, the free encyclopedia

Badge worn by some in protest against Gillick's campaign.

Gillick competence is a term originating in England and is used in medical law to

decide whether a child (16 years or younger) is able to consent to his or her own
medical treatment, without the need for parental permission or knowledge.

The standard is based on a decision of the House of Lords in the case Gillick v West
Norfolk and Wisbech Area Health Authority [1985] (1985) 3 All ER 402 (HL). The case is
binding in England and Wales, and has been approved in Australia, Canada and New
Zealand. Similar provision is made in Scotland by The Age of Legal Capacity (Scotland)
Act 1991. In Northern Ireland, although separate legislation applies, the then
Department of Health and Social Services Northern Ireland stated that there was no
reason to suppose that the House of Lords' decision would not be followed by the
Northern Ireland Courts.

The Gillick decision

The Gillick case involved a health departmental circular advising doctors on the
contraception of minors (for this purpose, under sixteens). The circular stated that the
prescription of contraception was a matter for the doctor's discretion, and that they could
be prescribed to under sixteens without parental consent. This matter was litigated
because an activist, Mrs. Victoria Gillick (née Gudgeon), ran an active campaign against
the policy. Mrs Gillick sought a declaration that prescribing contraception was illegal
because the doctor would commit an offence of encouraging sex with a minor, and that
it would be treatment without consent as consent vested in the parent.

The issue before the House of Lords was only whether the minor involved could give
consent. 'Consent' here was considered in the broad sense of consent to battery or
assault: in the absence of patient consent to treatment, a doctor, even if well-
intentioned, might be sued/charged.

The House of Lords focussed on the issue of consent rather than a notion of 'parental
rights' or parental powers. In fact, the court held that 'parental rights' did not exist, other
than to safeguard the best interests of a minor. The majority held that in some
circumstances a minor could consent to treatment, and that in these circumstances a
parent had no power to veto treatment.

Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with
both). Lord Scarman's test is generally considered to be the test of 'Gillick competency'.

27
He required that a child could consent if he or she fully understood the medical
treatment that is proposed:

"As a matter of Law the parental right to determine whether or not their minor child
below the age of sixteen will have medical treatment terminates if and when the child
achieves sufficient understanding and intelligence to understand fully what is
proposed." Lord Scarman

The ruling holds particularly significant implications for the legal rights of minor children
in England in that it is broader in scope than merely medical consent. It lays down that
the authority of parents to make decisions for their minor children is not absolute, but
diminishes with the child's evolving maturity. The result of Gillick is that in England
today, except in situations that are regulated otherwise by law, the legal right to make a
decision on any particular matter concerning the child shifts from the parent to the child
when the child reaches sufficient maturity to be capable of making up his or her own
mind on the matter requiring decision.

Subsequent developments
The decisions in Re R and Re W (especially Lord Donaldson) contradict the Gillick
decision somewhat. From these, and subsequent cases, it is suggested that although
the parental right to veto treatment ends, parental powers do not ‘terminate’ as
suggested by Lord Scarman in Gillick. However, these are only obiter statements and
were made by a lower court; therefore, they are not legally binding. However, the
parens patriae jurisdiction of the court remains available allowing a court order to force
treatment against a child's (and parent’s) wishes.

A child who is deemed "Gillick competent" is able to prevent their parents viewing their
medical records. As such, medical staff will not make a disclosure of medical records of
a child who is deemed "Gillick competent" unless consent is manifest.

In most jurisdictions the parent of an emancipated minor does not have the ability to
consent to therapy, regardless of the Gillick test. Typical positions of emancipation arise
when the minor is married (R v D [1984] AC 778, 791) or in the military.

The nature of the standard remains uncertain. The courts have so far declined
invitations to define rigidly "Gillick competence" and the individual doctor is free to make
a decision, consulting peers if this may be helpful, as to whether that child is "Gillick
competent".

Australian law
The Australian High Court gave specific and strong approval for the Gillick decision in
'Marion's Case' (1992) 175 CLR 189. The Gillick competence doctrine is part of
Australian law (see e.g. DoCS vY [1999] NSWSC 644).
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There is no express authority in Australia on Re R and Re W, so whether a parent’s
right terminates is unclear. This lack of authority reflects that the reported cases have all
involved minors who have been found to be incompetent, and that Australian courts will
make decisions in the parens patriae jurisdiction regardless of Gillick competence.

In South Australia and New South Wales legislation clarifies the common law,
establishing a Gillick-esque standard of competence but preserving concurrent consent
between parent and child for the ages 14–16.

Confusion regarding Gillick competency

On 21 May 2009, confusion arose between Gillick competency, which identifies under-
16s with the capacity to consent to their own treatment, and the Fraser guidelines,
which are concerned only with contraception and focus on the desirability of parental
involvement and the risks of unprotected sex in that area. A persistent rumour arose
that Victoria Gillick disliked having her name associated with the assessment of
children's capacity, although a recent editorial in the BMJ debunks this idea, quoting
Victoria Gillick as saying that she "has never suggested to anyone, publicly or privately,
that [she] disliked being associated with the term 'Gillick competent' ".[1]

Fraser Guidelines
It is lawful for doctors to provide contraceptive advice and treatment without parental
consent providing certain criteria are met. These criteria, known as the Fraser
Guidelines, were laid down by Lord Fraser in the House of Lords' case and require the
professional to be satisfied that:

 the young person will understand the professional's advice;

 the young person cannot be persuaded to inform their parents;
 the young person is likely to begin, or to continue having, sexual intercourse with
or without contraceptive treatment;
 unless the young person receives contraceptive treatment, their physical or
mental health, or both, are likely to suffer;
 the young person's best interests require them to receive contraceptive advice or
treatment with or without parental consent.

Although these criteria specifically refer to contraception, the principles are deemed to
apply to other treatments, including abortion. Although the judgement in the House of
Lords referred specifically to doctors, it is considered to apply to other health
professionals, including nurses. It may also be interpreted as covering youth workers

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and health promotion workers who may be giving contraceptive advice and condoms to
young people under 16, but this has not been tested in court.

If a person under the age of 18 refuses to consent to treatment, it is possible in some

cases for their parents or the courts to overrule their decision. However, this right can
be exercised only on the basis that the welfare of the young person is paramount. In this
context, welfare does not simply mean their physical health. The psychological effect of
having the decision overruled would have to be taken into account and would normally
be an option only when the young person was thought likely to suffer "grave and
irreversible mental or physical harm". Usually, when a parent wants to overrule a young
person's decision to refuse treatment, health professionals will apply to the courts for a
final decision.

An interesting aside to the Fraser guidelines is that many regard Lord Scarman's
judgment as the leading judgment in the case, but because Lord Fraser's judgment was
shorter and set out in more specific terms - and in that sense more accessible to health
and welfare professionals - it is his judgment that has been reproduced as containing
the core principles.

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