M20073 Medical Law And Ethics


Case: Border V Lewisham And Greenwich NHS Trust

Montgomery was the Court of Appeal’s decision in Border v Lewisham and Greenwich NHS Trust [2015].

This case highlights the importance to consider not only whether a treatment can be accepted but also whether consent has been given by the patient.

The claimant was a 64-year-old woman who had broken her right humerus.

The duty SHO at Queen Elizabeth Hospital Woolwich took her to the Emergency Department. She wanted to insert an IV line into the arm.

This is a standard procedure.

Although there was not an immediate need for it, it made sure that staff were ready in case of emergency.

He could not use her right arm because of the injury. Normal practice would have been for him to use his left.

She explained to the doctor that she had just undergone a left mastectomy and axillarynode clearance in her left arm.

There was a possibility of developing oedema from using the left arm.

You had two options: use the left arm, or wait to see if a cannula was needed later.

The evidence was conflicting as to what actually happened.

The judge agreed with the claimant’s explanation that the doctor made a quick and silent calculation and communicated only to her saying things like “I’m sorry, we really need to place it in the left arm”.

It was only then that she realized what was happening.

The left arm developed a severe and permanent case of oedema, which resulted in significant disability.

The judge ruled that inserting a line into the left arm was the right decision, rather than waiting and seeing if the situation would change.

Although an experienced consultant may feel comfortable taking a calculated risk and waiting to see what happens, it would not be appropriate for a senior officer.

He did not commit a breach of duty by his actions.

Therefore, the claim was dismissed at trial.

The claimant brought up a case that had not been presented at trial on appeal.

The Defendant contested her argument that she had found out that the doctor did not obtain the patient’s consent before inserting a cannula.

She was entitled to a judgment on the ground that there had been a breach of duty by failing to consent.

It did not necessarily mean that the doctor acted according to accepted practice. He was still entitled to consent.

The Court of Appeal accepted that the judge had reached such a conclusion.

The Court of Appeal also observed that consent-based allegations were within her pleaded case, even though they weren’t raised at trial.

On appeal, she was entitled to argue that her lack of consent led to a breach in duty. “A finding of non-consent to inserting the cannula will inexorably lead to a finding that you breached your duty to insert it.”

The Court of Appeal made a declaration that doctor had breached his duty by inserting the cannula in the patient’s absence without her consent. It then referred the case to the judge for determination of causation.

It denied her permission to amend the papers to add a claim for trespass to the individual, which would have shortened the time it took to resolve the question of causation.

Border v Lewisham and Greenwich NHS Trust does not change the law regarding consent, but it highlights the importance and necessity of properly pleading.

If she had pleaded trespass to her client, the claim would have been successful without the need to prove that she was receiving proper advice.



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