Chestar V Afshar

2486 Words10 Pages
The decision of the House of Lords in Chester v Afshar has wholly redefined the law of consent to treatment. Today consent in English law is nothing to do with the Bolam test and everything to do with respect for human rights, autonomy and dignity. That is how it should be – the days of “doctor knows best” are thankfully long gone Consent is paramount to medical law. One key principle of medical law is that a competent adult patient must give their consent to medical treatment hence to touch a patient without their consent is prima facie unlawful. For consent to be valid it must be voluntarily by someone who has the capacity to consent and who has been told of what their treatment entails. The law to consent is an area of contentious law whereby existing judicial decisions can be on two opposing sides of a spectrum. There is the paternalistic view which favours the Dr’s know best notion and there is the prudent patient view which upholds strong respect for autonomy and dignity. This essay will explore whether the decision of the seminal case of Chester v Afshar has redefined the law of consent to treatment and whether the days of ‘Dr knows best’ and the paternalistic approach to consent are long gone. There are two causes of action for a claimant to sue their doctor. They are battery and negligence. It is unlikely for a claim to succeed in battery because provided the Dr has informed the patients of the broad risks then a claim is unlikely to succeed. Hence the final avenue for a claimant is negligence. Negligence is more difficult to establish because there are more hurdles to cross such as establishing a duty, establish a breach of that duty and causation. The latter two are more difficult. Usually a breach of a Dr’s duty arises on their failure to inform the patients of risks which if informed may have affected their consent. Once the claimant has
Open Document