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Treatment performed without consent

Medical treatment: consent and withdrawal

Legal action in tort

Any medical treatment involving physical contact with a patient’s body is prima facie a tort of battery unless the patient has expressly consented (agreed) to that contact, or has at least implied his/her consent.

If the consent is given following incomplete or unsatisfactory advice, that consent could not be used as a defence agaist a claim. In such circumstances, the patient can sue the medical practitioner for damages in tort.

The time limit to take action in tort is 6 years from the date on which the cause of the action occured (Section 4(1) of the Limitation Ordinance, Cap. 347).

Negligent treatment

Irrespective of whether the patient has given consent to a treatment or not, if the medical practitioner has committed any negligent error in carrying out that treatment and has caused injury to the patient, the medical practitioner would be liable to the patient for negligence.

A medical practitioner owes a duty in tort to his patient: he must exercise reasonable care and skill in his/her treatment of the patient. Failure to do so would render the practitioner liable to the patient for damages for personal injury caused by the negligent treatment.

In order to claim damages, the injury must be shown to be the result of an error on the part of the medical practitioner and not the result of an inherent risk of the treatment, and that such an error would have avoided by a reasonably competent medical practitioner.

A negligent treatment is one which fails to attain the degree of skill and competence required of a reasonable practitioner. The basis of the test used to determine whether or not a practitioner has been negligent is the standard which would ordinarily be expected of a person trained in, exercising, and professing to have the special skills in question. It is not considered negligece if the practitioner exercises the ordinary or normal skill of a competent person exercising that particular art, even if the result of the treatment proves unsatisfactory. This test is called the “Bolam Test”, which is derived from the English case of Bolam v Friern HMC [1957].

The test is to be considered in the light of the practitioner’s specialisation and the post he holds.  Inexperience is irrelevant to the required standard of care.

The treatment must be judged in the context of proper treatment at the time the negligence occured. The Court will not use a more current or advanced medical standard to judge a treatment that occurred in the past when the resources and equipment used  were less advanced.

A practitioner who acts in conformity with an accepted current practice is not negligent merely because there is a body of opinion which would take a contrary view.

The practice relied on must be respectable, responsible and reasonable and has to have a logical basis.

The time limit to take action for personal injures is three years from the date on which the cause of action occurred, or three years from the date (if later) on which the plaintiff first discovered something was wrong (section 27 of the Limitation Ordinance, Cap. 347).

For more information, you may refer to  another topic: Medical Negligence.

Lodging a complaint with the Medical Council

A patient can also lodge a complaint with the Medical Council of Hong Kong, which is responsible for registration and the professional discipline of medical practitioners. The Medical Council of Hong Kong was established under the Medical Registration Ordinance, Chapters 161, Laws of Hong Kong (“MRO”),

There in no time limit for making complaints.

The Council will in appropriate cases carry out an investigation and/or hold public hearings.

Under section 21(1) of the MRO, the Council is empowered to discipline a registered medical practitioner who has commited an offence that is subject to discipline.

If a practitioner is found guilty of a disciplinary offence, he or she will be reprimanded or given a public warning by the Council. In serious cases, his or her name may be removed from the General Register.

However, the Council can not grant damages to an aggrieved patient. The patient has to take legal action and sue for damages in Court.