THE COPPERBELT UNIVERSITY

SCHOOL OF HUMANITIES AND SOCIAL SCIENCES

DEPARTMENT OF LAW

NAME: ERICAH BWATO

CODE: LS 251
COURSE: MEDICAL LAW
SIN: 22109683
LECTURER: Mr CHIMBA
Due Date: 03RD April, 2024
INTRODUCTION

This research paper will discuss mainly on the respect of autonomy, but this introduction will
accommodate all the ethical principles which are autonomy, justice, beneficence and non-
malficence.

THE DOCTRINE OF AUTONOMY

Autonomy is a fundamental principle that recognizes the rights of patients to make decisions
about their healthcare in the sense that it allows one to make to decide what happens to their
bodies1. Medical practitioners cannot impose treatment on patients without their consent but they
must provide all the relevant information such as risks, benefits and so on to the patients and let
the patient decide on how they will take the treatment.2

In this case autonomy was not present because we see in Kachasu v Manda3 that Kachasu was
given treatment regarding blood even though he refused blood transfusion due to his religious
belief, and here the treatment was carried out even though the patient refused it in the first place.
The doctors in this case went against Guideline 8.2 which states that “Health practitioners must
respect the terms of any advance refusal by the patient which they know about or which is drawn
to their attention.”4 The law states that “medical treatment may not be given to an adult of full
capacity without his consent unless in exceptions like the person has a contagious disease or in
a medical emergency where a person is unable to communicate.”5 This means a doctor has the
power to administer treatment to patients on the exceptions that there not conscious or it is a
matter of death. Guideline 3.1.4 “patients have the right to refuse health care services and are
entitled to information regarding the implications, risks and obligations of such refusal.”6 The case
Mallette v Shulman7 id was also mentioned that “A competent adult is generally entitled to reject
treatment or pick an alternate form of treatment even if his decisions may be risky or death, it is
the patient who has the final say on whether to undergo the treatment.” This is in line with what
Guideline 9.4.3 states which is that “health practitioners must respect any refusal or treatment
given when the patient was competent provided the decision in the advance statement is clearly

1
https://www.ncbi,nih.gov/prmc/articles
2
Mallette v Schuman (1990) 72 O.R,=.2d 417(CA
3
Kachasu v Manda
4
Guileline 8.2
5
RE A WARD
6
Guidelines on informed consent
7
Mallette v Shulman
applicable to the present circumstances and there is no reason to believe that the patient has
changed his or her mind.”8

The exception to this principle of autonomy can be seen In the case of RE T9 where the court held
that “it is not a crime to treat someone who Is unconscious or unable to give consent or it is in a
state of an emergency” to avoid liability health practitioners must after an emergency tell the
patient what has been done and why as soon as the patient is sufficiently recovered to
understand.

CONCLUSION

Patient autonomy is important in the sense that it helps establish trust between the health
practitioners and the patients and it is an important aspect of fundamental ethics of health
practitioners because it emphasizes on the patient’s rights to be informed about decision relating
to the health and body.10 We must also note that the other time patient autonomy is not followed
with patients is when the patient does not have the full capacity to make decision (mental
problems) or when the patient is a child then the doctors must consult with the relatives of the
patients.

QUESTION 2

INTRODUCTION

The Bolam test is a peer review for medical practitioner’s actions because it establishes whether
a medical practitioner has acted in a way that a substantial body or other skilled professionals
who are in the same field would have acted in the same manner.The case of Bolam v Friern
Hospital Management Committee 195711 establishes the rule for accessing the appropriate
standard of reasonable care in negligence cases involving skilled professionals like doctors

THE TWO PART TEST IN THE BOLAM TEST

1) The ordinary man of skill

The case of Bolam v Frien hospital management committee12 has put in place the general
standard of care the test is the standard of the ordinary skilled man exercising and professing to

8
Guideline 9.4.3
9
RE T
10
Hhtps://www.themedical-ethics-autonomy-the-medic-portal
11
Bolam v Friern Hospital Management Committee 1957 1 WLR 582
12
Bolam v Frien
have that skill what this means is that one does not need to show that he has the highest expert
skill is enough that he exercises the ordinary skill of a competent man who is exercising that art.
In this case the medical practitioner is judged based on his specialty or if other medical
practitioners put in that situation would have some the same thing the case of Rosemary Bwalya
v ZCCM (Mufilira Div.) Malcom Watson Hospital and Dr. Y.C Malik13 confirmed what was
mentioned in the Bolam case when the courts stated that “the standard of care demanded of
medical practitioners is that required of any profession”

2) Responsible body of medical option

This part of the test does not hold a medical practitioner liable or negligent as long as he proves
or shows that he acted according to the principle laid out and in accordance to the ethics14

The case of Cicuto v Davidson and Oliver15 the courts held that a man is not liable of negligence
if he acted in accordance with the practice accepted as proper by a reasonable body of medical
men skilled in that particular art, merely because there is a body of option who would take a
contrary view and also that a wrong diagnosis is not necessarily an unskilled or negligent
diagnosis. Under the Bolam test, the standard of care of not judged according to the reasonable
man test and so their actions are not compare with those of a reasonable man so under this test
a person exercising specialist skill will be in comparison to with his natural peer group 16 a doctors
actions must align with the accepted practices within the medical community, if other competent
professionals would have taken a similar approach then the doctor will not be held liable

Conclusion

The Bolam test is a cornerstone for the medical profession as it sets what amount to medical
negligence and anything short of that is not. This test has helped the courts determine many
cases based on this principle although some have argued that it hinders the courts from arriving
to a equal decision but as we know the saying goes like “to every general rule there is an
exception” which is the same for this principle s well.

13
Rosemary Bwalya v ZCCM Malcom Watson Hospital
14
https://www.lawteacher.net/free-law-essay/medica-law/bolam-test-clinical-negligence.php
15
Cicuto v Davidson and Oliver (1968) ZR 149
16
Unlocking Torts
 BIBLOGRAGHY
CASES

Cicuto v Davidson and Oliver (1968) ZR 149

Rosemary Bwalya v ZCCM (Mufilira Div.) Malcom Watson Hospital and Dr. Y.C Malik

Bolam v Frien Hospital Management Committee 1957 1 WLR 582

RE T (adult: refusal of medical treatment) [1992] 4 ALL ER 649 (CA)

RE A (Conjoined twins) [2000] 4 ALL ER 961

Mallette v Schulman (1991) 72 O.R. (2D) 412 (CA):1991 (2) Med LR

Kachasu v Manda and Ors (APPEAL NO. 163 F 2021) ZMCA 208 ) 30TH AUGUST 2023)

BOOKS

Guidelines for good practice in the health care profession (ethical considerations) 1st Edition
march 2016

C.L (Unlocking Torts) 4th Edition Routledge 2 park square, Milton park, Oxon OX14 4RN New York
2014

LINKS

https://www.lawteacher.net/free-law-essay/medica-law/bolam-test-clinical-negligence.php

https://www.ncbi,nih.gov/prmc/articles

Hhtps://www.themedical-ethics-autonomy-the-medic-portal