Medical Non-Disclosure and Hypothetical Consent

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Abstract:

A doctor who performs a medical procedure without the patient's informed consent may incur civil liability. This article investigates whether the doctor is liable where the patient, if fully informed, would still have undergone the procedure. Does the patient's hypothetical informed consent exonerate the doctor? In other words: Is the doctor's non-disclosure required to be a cause of the patient's injury? An answer to that question requires a distinction between the situation in which the patient did not consent at all or the doctor's non-disclosure vitiated the patient's consent (battery), and the situation in which the patient's consent is valid despite the doctor's non-disclosure (negligence). The focus is on the law of England and Wales, although material from Australia and Canada is also considered.

Document Type: Research Article

Publication date: October 1, 2009

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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