Dreptul medical
Consimțământul la tratament, neglijența clinică, sănătatea mintală și drepturile pacienților.
Introducere
Dreptul medical reglementează relația dintre profesioniștii din sănătate și pacienți.
In Brief
Healthcare professionals must obtain your informed consent before treating you — following the Supreme Court's Montgomery decision, doctors must tell you about any risks you would consider significant. A clinical negligence claim must generally be brought within three years of the treatment (or when you knew of the negligence), and you must show the treatment fell below an acceptable standard and caused you harm.
Principii fundamentale
Consent — A competent adult has an absolute right to refuse medical treatment, even if refusal will lead to death (Re B (Adult: Refusal of Treatment) [2002]). Treatment without valid consent constitutes battery or negligence.
Clinical Negligence — Healthcare professionals owe a duty of care to patients. Breach is assessed against the standard of a responsible body of medical opinion (Bolam v Friern Hospital [1957]), as modified by Bolitho v City and Hackney HA [1998] (the court can reject expert opinion that is not logically defensible).
Informed Consent — Following Montgomery v Lanarkshire [2015], a doctor must inform the patient of any material risk involved in treatment and any reasonable alternative treatments. A risk is 'material' if a reasonable patient would attach significance to it.
Mental Capacity — The Mental Capacity Act 2005 provides a statutory framework for decision-making on behalf of adults who lack capacity. Capacity is assessed functionally and decision-specifically. Best interests must guide decisions made on behalf of incapacitated adults.
Mental Health Detention — The Mental Health Act 1983 provides for the compulsory admission and treatment of persons with mental disorders. Patients have rights to tribunals, independent mental health advocates, and safeguards against prolonged detention.
Confidentiality — Healthcare professionals owe a duty of confidentiality to patients. Disclosure without consent is justified in limited circumstances: where required by law, in the public interest, or with the patient's consent.
End of Life — Euthanasia and assisted suicide remain unlawful (Suicide Act 1961, s.2). However, withdrawal of life-sustaining treatment is lawful where it is in the patient's best interests (Airedale NHS Trust v Bland [1993]).
NHS Constitution — The NHS Constitution for England sets out the principles and values of the NHS, the rights and pledges to patients, and the responsibilities of patients, staff, and the public.
Statute cheie
Cazuri de referință
Airedale NHS Trust v Bland
[1993] AC 789
Scenarii comune
Patient refuses life-saving blood transfusion
A competent adult has an absolute right to refuse treatment, including life-saving treatment, for any reason. The refusal must be informed and voluntary. If the patient lacks capacity, the decision must be made in their best interests under the Mental Capacity Act 2005.
Surgeon fails to warn of a rare complication
Following Montgomery v Lanarkshire [2015], a doctor must disclose material risks of treatment. Failure to warn of a risk that the patient would have considered significant may give rise to a negligence claim, even if the surgery was performed competently.
Sectioning a family member under the Mental Health Act
Compulsory admission under s.2 (assessment, up to 28 days) or s.3 (treatment, up to 6 months) requires an application by an Approved Mental Health Professional, supported by two medical recommendations. The patient has the right to apply to a Mental Health Tribunal for discharge.
Related Careers
Frequently Asked Questions
What is the difference between the Bolam test and the Montgomery test?
The Bolam test (Bolam v Friern [1957]) sets the standard for clinical negligence: a doctor is not negligent if acting in accordance with a practice accepted by a responsible body of medical opinion. The Montgomery test (Montgomery v Lanarkshire [2015]) applies specifically to consent: a doctor must disclose any material risk the patient would consider significant, regardless of what other doctors would routinely disclose.
Can a patient refuse life-saving treatment?
Yes — a competent adult has an absolute right to refuse any medical treatment, including treatment that would preserve their life (Re B [2002]). The refusal must be voluntary, informed, and made by a person with capacity. If capacity is in doubt, the Mental Capacity Act 2005 framework applies and treatment decisions must be in the patient's best interests.
What is a Lasting Power of Attorney for health and welfare?
A health and welfare LPA allows a person (the donor) to appoint an attorney to make decisions about medical treatment, care, and where they live if they lose mental capacity. It must be registered with the Office of the Public Guardian before it can be used. The attorney must act in the donor's best interests under the Mental Capacity Act 2005.
What rights does a patient have under the NHS Constitution?
The NHS Constitution for England gives patients rights including: the right to be treated with dignity and respect, the right to receive care within maximum waiting times, the right to a second opinion, the right to confidentiality, the right to see their own health records, and the right to complain and have complaints investigated.
Important Deadlines
Typical Costs
Official Resources
What To Do Next
Step-by-Step Guides
Know Your Rights
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