SIDAWAY (A.P.) (APPELLANT)
V.
BETHLEM ROYAL HOSPITAL AND THE MAUDESLEY HOSPITAL HEALTH
AUTHORITY AND OTHERS (RESPONDENTS)
JUDGMENT
Die Jovis 21° Februarii 1985
Upon Report from the Appellate Committee to whom was
referred the Cause Sidaway against Bethlem Royal Hospital and
the Maudesley Hospital Health Authority and others, That the
Committee had heard Counsel on Monday the 3rd, Tuesday the
4th, and Wednesday the 5th days of December last upon the
Petition and Appeal of Amy Doris Sidaway of 87 Friern Road
London SE22 praying that the matter of the Order set forth in
the Schedule thereto, namely an Order of Her Majesty’s Court
of Appeal of the 23rd day of February 1984, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and
that the said Order might be reversed, varied or altered or
that the Petitioner might have such other relief in the
premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as also upon the Case of The
Board of Governors of the Bethlem Royal Hospital and The
Maudesley Hospital and Coutts & Co. and Mrs. Valda Helen
Falconer, in their capacities as executors of Mr. M. A.
Falconer deceased, lodged in answer to the said Appeal, and
due consideration had this day of what was offered on either
side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 23rd day of February 1984 complained of in the
said Appeal be, and the same is hereby, Affirmed and that the
said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
Costs of the Appellant in respect of the said Appeal be taxed
in accordance with Schedule 2 to the Legal Aid Act 1974 and
that the Costs of the Respondents be paid out of the Legal
Aid Fund pursuant to section 13 of the Legal Aid Act 1974.
Cler: Parliamentor:
HOUSE OF LORDS
55
SIDAWAY (A.P.) (APPELLANT)
BETHLEM ROYAL HOSPITAL AND THE MAUDESLEY
HOSPITAL HEALTH AUTHORITY AND OTHERS
(RESPONDENTS)
Lord Scar man
Lord Diplock
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Templeman
LORD SCARMAN
My Lords,
The state of the evidence in this case compels me to the
conclusion that the appellant has not made out a case of
negligence against her surgeon, the late Mr. Murray A. Falconer.
I regret profoundly that after a trial in the course of which the
judge listened with great care to a substantial and complex volume
of medical evidence and delivered a meticulous and detailed
judgment, and after two appellate hearings (by the Court of
Appeal and your Lordships’ House), the conclusion should be that
the plaintiff has failed to prove her case.
Such a result is, I believe, inevitable for a number of
reasons. The issue is whether Mr. Falconer failed to exercise due
care (his skill was not challenged) in the advice which he gave his
patient when recommending an operation: I use the word advice
to cover information as to risk and the options of alternative
treatment. Whatever be the correct formulation of the applicable
law, the issue cannot be settled positively for or against the
doctor without knowing what advice, including any warning of
inherent risk in the operation, he gave his patient before she
decided to undergo it and what was his assessment of the mental,
emotional, and physical state of his patient. The trial judge
derived no help on these two vital matters from the evidence of
the appellant. Mr. Falconer was not an available witness, having
died before trial, and the medical records afforded no sure guide
on either matter. Regrettable though a “non-proven” verdict is, it
is not, therefore, surprising. Where the court lacks direct
evidence as to the nature and extent of the advice and warning (if
any) given by the doctor and as to his assessment of his patient
the court may well have to conclude that the patient has failed to
prove her case.
This lack of evidence is unsatisfactory also from a purely
legal point of view. I am satisfied, for reasons which I shall
develop, that the trial judge and the Court of Appeal erred in law
in holding that in a case where the alleged negligence is a failure
to warn the patient of a risk inherent in the treatment proposed,
the “Bolam test”, to which I shall refer in detail at a later stage
of my speech, is to be applied. In my view the question whether
or not the omission to warn constitutes a breach of the doctor’s
duty of care towards his patient is to be determined not
exclusively by reference to the current state of responsible and
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competent professional opinion and practice at the time, though
both are, of course, relevant considerations, but by the court’s
view as to whether the doctor in advising his patient gave the
consideration which the law requires him to give to the right of
the patient to make up her own mind in the light of the relevant
information whether or not she will accept the treatment which he
proposes. This being my view of the law, I have tested the facts
found by the trial judge by what I believe to be the correct legal
criterion. In my view the appellant has failed to prove that Mr.
Falconer was in breach of the duty of care which he owed to her
in omitting to disclose the risk which the trial judge found as a
fact he did not disclose to her.
I turn now to the detailed facts and issues in the case.
This is an appeal by the plaintiff, Mrs. Sidaway, from the
dismissal by the Court of Appeal of her appeal from the judgment
of Skinner J. given on 19 February 1982 whereby he dismissed her
action for damages in respect of the personal injuries which she
suffered as a result of a surgical operation performed upon her by
a neuro-surgeon on 29 October 1974. The first defendants are the
governing body of the Maudsley Hospital where she was treated
and where she underwent the operation. The second defendants
are the executors of Mr. Falconer, the distinguished neuro-surgeon
who advised and performed the operation. Mr. Falconer died in
August 1977, some five years before the trial of the action. Mrs.
Sidaway does not allege negligence in the performance of the
operation. Her case is that she was not informed of a risk
inherent in the operation, that the risk materialised with the result
that she suffered, and continues to suffer, serious personal injury,
and that, had she been warned, she would not have consented to
the operation. Damages are agreed at £67,500 subject to liability.
The case is plainly of great importance. It raises a
question which has never before been considered by your Lordships’
House. Has the patient a legal right to know, and is the doctor
under a legal duty to disclose, the risks inherent in the treatment
which the doctor recommends? If the law recognises the right and
the obligation, is it a right to full disclosure or has the doctor a
discretion as to the nature and extent of his disclosure? And, if
the right be qualified, where does the law look for the criterion
by which the court is to judge the extent of the disclosure
required to satisfy the right? Does the law seek guidance in
medical opinion or does it lay down a rule which doctors must
follow, whatever may be the views of the profession? There is
further a question of law as to the nature of the cause of action.
Is it a cause of action in negligence, i.e. a breach of the duty of
care, or is it based on a breach of a specific duty to inform the
patient which arises not from any failure on the part of the
doctor to exercise the due care and skill of his profession but
directly from the patient’s right to know?
Before attempting to answer these questions it is necessary
to set out the facts of the case. At once a formidable difficulty
arises. Mr. Falconer was dead before the trial. The judge was
not prepared to accept Mrs. Sidaway’s evidence that he gave no
warning. The judge was, therefore, without any direct evidence as
to the extent of the warning given. Further, the judge lacked
evidence which Mr. Falconer alone could have given as to his
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assessment of his patient with especial reference to his view as to
what would be the effect upon her of a warning of the existence
of a risk, albeit slight, of serious personal injury arising from the
operation however skilfully and competently it was performed.
Such being the limitations upon the availability of critically
important evidence, I confess that I find it surprising that the trial
judge felt able to reach the detailed findings as to the extent of
the warning given which are a striking feature of his judgement.
There is, however, no appeal against his findings; and I have no
doubt that your Lordships’ House must proceed upon the basis of
the facts as found. Nevertheless, the lack of knowledge of Mr.
Falconer’s assessment of his patient reduces to some extent the
guidance which your Lordships can give for the assistance of
judges in future cases. It also presents difficulties for the
appellant.
Mrs. Sidaway was 71 years of age at the time of the trial
in 1982. She was severely disabled by a partial paralysis resulting
from her operation. The relationship of doctor and patient
between Mr. Falconer and herself had been long-standing prior to
the operation. In 1958 she had injured an elbow at work and as a
result had suffered persistent pain. Treatment failed to relieve
pain. In July 1960, she was referred to the Maudsley Hospital
where Mr. Falconer discovered that the second and third cervical
vertebrae were congenitally fused and that there was a significant
narrowing of the spinal column between the fifth and sixth
vertebrae. Mr. Falconer diagnosed the deformity in this area as
the cause of her pain. He decided to operate. He removed the
disc between the fifth and sixth vertebrae of the neck and fused
the two vertebrae by a bone graft. Although pain persisted for
another two years, it eventually disappeared. Mr. Falconer’s
diagnosis was proved correct and his operation ultimately
succeeded in relieving his patient’s pain.
Mr. Falconer annually reviewed his patient’s progress
between I960 and 1970. In 1973, he wrote to Mrs. Sidaway asking
how she was. She replied, complaining of very persistent pain “in
the right arm and shoulder,” which was the same area as before,
and now also of pain in the left forearm. Mr. Falconer saw her
in the early months of 1974. After some delays, she was admitted
to hospital on 11 October 1974. Her pain in the meantime had
got progressively worse.
On admission, Mrs. Sidaway was thoroughly examined by Dr.
Goudarzi, a junior member of Mr. Falconer’s team. On 17
October, she underwent a myelogram which revealed a partial
block at the level of the C4/5 disc space, a posterior ridge in the
same area which appeared to have, at least in part, a bony
structure, and a narrowing of the subarachnoid space in the same
area. Mr. Falconer diagnosed that pressure on a nerve root was
the cause of her pain and decided to operate. The operation,
which he performed on 29 October 1974, and its risks were, if I
may respectfully say so, admirably and lucidly described by the
trial judge, from whose judgment I take the following description:
“The operation consisted of a laminectomy of the fourth
cervical vertebra and a facetectomy or foraminectomy of
the disc space between the fourth and fifth cervical
vertebrae. A laminectomy is an excision of the posterior
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arch of the vertebra. It gives the surgeon access to the
foramen or channel through which nerves travel from the
spine laterally. Randomly placed in the foramina, running
alongside the nerves, are small blood vessels known as the
radicular arteries. These supply blood to the cord and are
extremely vulnerable because of (a) their size and (b) the
unpredictable nature of their siting. In one foramen, there
may be one, two or more radicular arteries. Their rupture
or blockage may cause damage to the cord by depriving it
temporarily or permanently of its blood supply at the
relevant level. At the operation, Mr. Falconer freed the
fourth cervical nerve root by removing the facets, or small
bony protuberances, from the fourth verbebra and used a
dental drill to free the nerve within the foramen.”
It was common ground between ail the neuro-surgeons who gave
evidence that the operation involved specific risks beyond those
inherent in all operations under general anaesthetic. So far as the
general risks are concerned, the judge commented that Mrs.
Sidaway was a healthy woman apart from her cervical spine, and
no medical witness had suggested that any special warning as to
the existence of those risks needed to be given.
The two specific risks of injury were: (1) damage to a nerve
root in the area of the operation; and (2) damage to the spinal
cord either by direct contact or by some interference, which might
be slight and of short duration or very much more serious, of the
radicular arteries running through a foramen.
The risk of either sort of damage occurring was not great: one
surgeon estimated the degree of risk at between one and two per
cent. But, if either risk materialised, the injury could be severe.
Mr. Uttley, the distinguished surgeon called on behalf of Mrs.
Sidaway, said that the possible effects of the damage ranged from
a sensation of pins and needles in the hand to paraplegia, i.e. a
partial paralysis. All the surgeons who were called as expert
witnesses accepted that the risk of damage, though slight, was a
real one. They distinguished between the two categories of
specific risk, the effect of damage to a nerve root being in all
probability that the operation would fail to relieve and might
increase pain, while damage to the spinal cord might cause a
partial paralysis. The risk of damage to the spinal cord was,
however, in their opinion less that one per cent.
There is no challenge to the judge’s findings: (1) that Mr.
Falconer’s diagnosis was correct; and (2) that his recommendation
in favour of operative treatment was one which he could
reasonably and properly have made to his patient; and (3) that he
performed the operation with due care and skill.
The issue between the parties arises solely in respect of the
warning, if any, which Mr. Falconer gave his patient of the
specific risks inherent in the operation. None of the medical
witnesses suggested that his decision to recommend the operation
was itself wrong. And no one has ever suggested that the
operation was carried out otherwise than competently and skilfully.
The one criticism, made and pursued on behalf of Mrs. Sidaway
throughout this litigation, is that Mr. Falconer was in breach of
his duty as her medical adviser in failing to warn her of the risk
of damage to the spinal cord.
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Mrs. Sidaway consented to the operation. She signed the
usual consent form, in which she declared that the nature and
purpose of the operation had been explained to her by Dr.
Goudarzi. Dr. Goudarzi confirmed that he had given her this
explanation: but he made it clear in his evidence that he would
have left warning of the risks to Mr. Falconer. And we know
from the hospital records that Mr. Falconer saw his patient before
he operated. It would have been his practice to give a warning:
but a finding as to what warning he gave faces the formidable
difficulty to which I have already referred, that Mr Falconer was
not available to give evidence. Nevertheless, the judge, while
refusing to accept Mrs. Sidaway’s evidence that she was given no
warning, made the following findings upon the balance of
probabilities. He said:
“on the evidence . . . the probabilities are that … on the
day before the operation he [Mr. Falconer] followed his
usual practice … It is probable that he explained the
nature of the operation [to his patient] … in simple
terms. … As to the risks, I think it is probable that
he mentioned the possibility of disturbing a nerve root and
the consequences of doing so, but I am satisfied that he did
not refer to the danger of cord damage or to the fact that
this was an operation of choice rather than necessity.”
The medical witnesses were agreed that they would give a
patient some warning of the specific risks involved before
performing an operation of this kind. They would explain the
nature and purpose of the operation, and that there was a small
risk of untoward consequences and of an increase of pain instead
of relief. Mr. Uttley would go further: he would warn of the
possible risk of some weakness of the legs resulting from the
operation. Two answers in his cross-examination were of great
importance. When asked whether he would question the judgment
of a surgeon that it was not in his patient’s interest to frighten
her by talking about death or paralysis, he replied “not at all:”
and he agreed that such a judgment would be in accordance with a
practice accepted as proper by a responsible body of competent
neuro-surgeons. The existence of such a practice was also
recognised by the other medical witnesses. Their view may be
summarised as being that the extent of the warning is a matter
for medical judgment with especial importance attached to the
doctor’s assessment of his patient.
This being the state of the evidence, the question for the
House is whether the omission by Mr. Falconer to warn his patient
of the risk inherent in the operation of damage to the spinal cord
with the possible result of a partial paralysis was a breach of duty
owed by him to his patient. The duty of a doctor to warn was
considered in Bolam v. Friern Hospital Management Committee
[1957] 1 W.L.R. 582, where it was treated as one to be answered
within the context of the duty of care and skill owed by a doctor
to his patient. In that case, the plaintiff, a voluntary patient in
the defendants’ mental hospital, sustained fractures in the course
of electro-convulsive therapy. The plaintiff claimed damages
alleging negligence (1) in failing to administer a relaxant drug
prior to the treatment: (2) in failing to provide some form of
manual restraint during the passing of electric current through his
– 5 –
brain: and (3) in failing to warn him of the risks involved in the
treatment. The case was heard by McNair J. and a jury. The
judge included in his summing-up to the jury a number of
directions as to the standard of care required of a doctor in
advising and treating his patient. He said at p. 586:
“The test is the standard of the ordinary skilled man
exercising and professing to have that special skill . . .it is
sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art.”
He referred at p. 587, without any critical comment, to the
defence submission that the jury had to make up its mind on each
of the three major topics” (these included the duty to warn of the
risks of treatment) whether the defendants were acting in
accordance with a [emphasis added] practice of competent
respected professional opinion.” And he concluded by directing the
jury that a doctor is not guilty of negligence if he acts in
accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art.” When the
judge dealt with the facts, he reminded the jury of the differing
evidence of the doctors as to the extent of warning which they
believed to be proper before a patient decided to undergo a
surgical operation. They all treated the question as one for
medical judgment. There was, however, at p. 590, this difference
of opinion among them: the doctor who recommended the E.C.T.
said that he did not agree that a patient should be warned of all
the risks of the operation: he should be told that “there are some
slight risks, but I do not tell him of the catastrophe risk.” Others
who were called to give independent expert evidence gave it as
their opinion that a warning should be given, but its extent was a
matter of medical judgment with especial importance attached to
the character of the patient: “every patient has to be considered
as an individual” (Dr. Page) and “Giving the full details may drive
a patient away” (Dr. Baker). McNair J. put the issue thus to the
jury, at p. 590:
“Having considered the evidence on this point, you have to
make up your minds whether it has been proved to your
satisfaction that when the defendants adopted the practice
they did (namely, the practice of saying very little and
waiting for questions from the patient), they were falling
below a proper standard of competent professional opinion
on this question of whether or not it is right to warn.”
The jury found for the defendants. The judge clearly directed the
jury to treat the test of negligence which he formulated as
exclusively applicable in medical cases. The Bolam principle may
be formulated as a rule that a doctor is not negligent if he acts
in accordance with a practice accepted at the time as proper by a
responsible body of medical opinion even though other doctors
adopt a different practice. In short, the law imposes the duty of
care: but the standard of care is a matter of medical judgment.
The Bolam principle has been accepted by your Lordships’
House as applicable to diagnosis and treatment: Whitehouse v.
Jordan [1981] 1 WLR 246 (treatment), and Maynard v. West
Midland Regional Health Authority [1984] 1 W.L.R. 634 (diagnosis).
It is also recognised in Scots law as applicable to diagnosis and
– 6 –
treatment: indeed, McNair J. in the Bolam case cited a Scots
decision to that effect, Hunter v. Hanley 1955 SLT 213 (Lord
President Clyde at p. 217.)
But was the judge correct in treating the “standard of
competent professional opinion” as the criterion in determining
whether a doctor is under a duty to warn his patient of the risk,
or risks, inherent in the treatment which he recommends? Skinner
J. and the Court of Appeal have in the instant case held that he
was correct. Bristow J. adopted the same criterion in Chatterton
v. Gerson [1981] Q.B. 432. The implications of this view of the
law are disturbing. It leaves the determination of a legal duty to
the judgment of doctors. Responsible medical judgment may,
indeed, provide the law with an acceptable standard in determining
whether a doctor in diagnosis or treatment has complied with his
duty. But is it right that medical judgment should determine
whether there exists a duty to warn of risk and its scope? It
would be a strange conclusion if the courts should be led to
conclude that our law, which undoubtedly recognises a right in the
patient to decide whether he will accept or reject the treatment
proposed, should permit the doctors to determine whether and in
what circumstances a duty arises requiring the doctor to warn his
patient of the risks inherent in the treatment which he proposes.
The right of “self-determination” – the description applied by
some to what is no more and no less than the right of a patient
to determine for himself whether he will or will not accept the
doctor’s advice – is vividly illustrated where the treatment
recommended is surgery. A doctor who operates without the
consent of his patient is, save in cases of emergency or mental
disability, guilty of the civil wrong of trespass to the person: he
is also guilty of the criminal offence of assault. The existence of
the patient’s right to make his own decision, which may be seen
as a basic human right protected by the common law, is the
reason why a doctrine embodying a right of the patient to be
informed of the risks of surgical treatment has been developed in
some jurisdictions in the U.S.A. and has found favour with the
Supreme Court of Canada. Known as the “doctrine of informed
consent,” it amounts to this: where there is a “real” or a
“material” risk inherent in the proposed operation (however
competently and skilfully performed) the question whether and to
what extent a patient should be warned before he gives his
consent is to be answered not by reference to medical practice
but by accepting as a matter of law that, subject to all proper
exceptions (of which the court, not the profession, is the judge), a
patient has a right to be informed of the risks inherent in the
treatment which is proposed. The profession, it is said, should not
be judge in its own cause: or, less emotively but more correctly,
the courts should not allow medical opinion as to what is best for
the patient to override the patient’s right to decide for himself
whether he will submit to the treatment offered him. It will be
necessary for the House to consider in this appeal what is involved
in the doctrine and whether it, or any modification of it, has any
place in English law.
The appellant’s submissions
The appellant’s first submission is that, even if (which she
does not accept) the Bolam principle determines whether a warning
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of risk should or should not be given, the facts found establish
liability. My Lords, the submission is untenable. It is not possible
to hold that the appellant has shown negligence in the Bolam sense
on the part of Mr. Falconer in advising or treating her. His
decision not to warn her of the danger of damage to the spinal
cord and of its possible consequences was one which the medical
witnesses were agreed to be in accordance with a practice
accepted as proper by a responsible body of opinion among neuro-
surgeons. Further, the medical evidence also emphasised that in
reaching a decision whether or not to warn his patient a
competent and careful surgeon would attach especial importance to
his assessment of the character and emotional condition of his
patient, it being accepted that a doctor acting in the best
interests of his patient would be concerned lest a warning might
frighten the patient into refusing an operation which in his view
was the best treatment in the circumstances. Nobody knows what
Mr. Falconer’s assessment of Mrs. Sidaway’s character, state of
mind and emotion was before her operation. There is no evidence
to justify an inference that this careful and compassionate man
(the history of the case, which I have related, shows that he
merited both adjectives) would have failed to consider what was in
the best interests of his patient. He could well have concluded
that a warning might have deterred her from agreeing to an
operation which he believed to be the best treatment for her.
The appellant’s second submission is that she has a cause of
action which is independent of negligence in the Bolam sense. The
submission is based on her right to decide for herself whether she
should submit to the operation proposed. In effect, she invokes
the transatlantic doctrine of informed consent.
The law
The doctrine is new ground in so far as English law is
concerned. Apart from the judgment of Bristow J. in Chatterton
v. Gerson [1981] Q.B. 432 I know of only one case prior to the
present appeal in which an English court has discussed it. In Hills
v. Potter [1984] 1 W.L.R. 641 Hirst J. followed Skinner J. in this
case, adding a comment with which I respectfully agree, that it
would be deplorable to base the law in medical cases of this kind
on the torts of assault and battery. He did, however, carefully
and helpfully devote part of his judgment to a consideration of the
transatlantic cases which accept a doctrine of informed consent.
He was, if I may say so, right to refuse to follow them: he was
sitting at first instance and was faced with formidable English
authority accepting the Bolam test (Skinner J. in the present case
and Bristow J. in respect of advice: and this House in respect of
diagnosis and treatment.) But the circumstance that this House is
now called upon to explore new ground is no reason why a rule of
informed consent should not be recognised and developed by our
courts. The common law is adaptable: it would not otherwise
have survived over the centuries of its existence. The concept of
negligence itself is a development of the law by the judges over
the last hundred years or so. The legal ancestry of the tort of
negligence is to be found in the use made by the judges of the
action on the case. Damage is the gist of the action. The action
on the case was sufficiently flexible to enable the judges to
extend it to cover situations where damage was suffered in
circumstances which they judged to call for a remedy. It would
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be irony indeed if a judicial development for which the opportunity
was the presence in the law of a flexible remedy should result
now in rigidly confining the law’s remedy to situations and
relationships already ruled upon by the judges.
Counsel for the appellant referred to Nocton v. Lord
Ashburton [1914] A.C. 932 in an attempt to persuade your
Lordships that the relationship between doctor and patient is of a
fiduciary character entitling a patient to equitable relief in the
event of a breach of fiduciary duty by the doctor. The attempt
fails: there is no comparison to be made between the relationship
of doctor and patient with that of solicitor and client, trustee and
cestui qui trust or the other relationships treated in equity as of a
fiduciary character. Nevertheless the relationship of doctor and
patient is a very special one, the patient putting his health and his
life in the doctor’s hands. Where Nocton v. Lord Ashburton does
throw light is upon the approach of our law to new or special
situations and relationships not previously considered by the judges.
In that case the House had to consider the field covered by Perry
v. Peek (1889) 14 App.Cas. 337, the famous case in which the
House had held that in an action of deceit it is necessary to prove
actual fraud. Lord Haldane had this to say at [1914] A.C. 932;
947:
“My Lords, the discussion of the case by the noble and
learned Lords who took part in the decision appears to me
to exclude the hypothesis that they considered any other
question to be before them than what was the necessary
foundation of an ordinary action for deceit. They must
indeed be taken to have thought that the facts proved as to
the relationship of the parties in Perry v. Peek were not
enough to establish any special duty arising out of that
relationship other than the general duty of honesty. But
they do not say that where a different sort of relationship
ought to be inferred from the circumstances the case is to
be concluded by asking whether an action for deceit will lie.
I think that the authorities subsequent to the decision of the
House of Lords shew a tendency to assume that it was
intended to mean more than it did. In reality the judgment
covered only a part of the field in which liabilities may
arise. There are other obligations besides that of honesty
the breach of which may give a right to damages. These
obligations depend on principles which the judges have
worked out in the fashion that is characteristic of a system
where much of the law has always been judge-made and
unwritten.”
This remains the approach of the judges to new or as yet
unconsidered situations. Unless statute has intervened to restrict
the range of judge-made law, the common law enables the judges,
when faced with a situation where a right recognised by law is not
adequately protected, either to extend existing principles to cover
the situation or to apply an existing remedy to redress the
injustice. There is here no novelty: but merely the application of
the principle “ubi jus ibi remedium.” If, therefore, the failure to
warn a patient of the risks inherent in the operation which is
recommended does constitute a failure to respect the patient’s
right to make his own decision, I can see no reason in principle
why, if the risk materialises and injury or damage is caused, the
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law should not recognise and enforce a right in the patient to
compensation by way of damages.
For the reasons already given, the Bolam principle does not
cover the situation. The facts of this very case expose its
limitation. Mr. Falconer lacked neither care for his patient’s
health and well-being nor professional skill in the advice and
treatment which he offered. But did he overlook or disregard his
patient’s right to determine for herself whether or not to have the
operation? Did he fail to provide her with the information
necessary for her to make a prudent decision? There is, in truth,
no evidence to answer these questions. Mrs. Sidaway’s evidence
was not accepted: and Mr. Falconer was dead. Assume, however,
that he did overlook this aspect of his patient’s situation. Since
neither his advice nor his treatment could be faulted on the Bolam
test, his patient may have been deprived of the opportunity to
exercise her right of decision in the light of information which
she, had she received it, might reasonably have considered to be
of importance in making up her mind. On the Bolam view of the
law, therefore, even if she established that she was so deprived by
the lack of a warning, she would have no remedy in negligence
unless she could also prove that there was no competent and
respected body of medical opinion which was in favour of no
warning. Moreover, the tort of trespass to the person would not
provide her with a remedy: for Mrs. Sidaway did consent to the
operation. Her complaint is that her consent resulted from
ignorance of a risk, known by the doctor but not made known by
him to her, inherent in the operation. Nor would the law of
contract offer her a sure way forward. Medical treatment, as in
her case, is frequently given today under arrangements outside the
control of the law of contract.
One point is clear, however. If failure to warn of risk is
actionable in English law, it must be because it is in the
circumstances a breach of the doctor’s duty of care: in other
words, the doctor must be shown to be negligent. English law has
not accepted a “no-fault” basis for the liability of a doctor to
compensate a patient for injury arising in the course of medical
treatment. If, however, the Bolam principle is to be applied to
the exclusion of any other test to advice and warning, there will
be cases in which a patient who suffers injury though ignorance of
a risk known to the doctor has no remedy. Is there any difficulty
in holding that the doctor’s duty of care is sufficiently extensive
to afford a patient in that situation a remedy, if as a result she
suffers injury or damage? I think not. The root principle of
common law negligence is to “take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to
injure your neighbour”: Donoghue v. Stevenson [1932] A.C. 562,
per Lord Atkin at p.580. If it be recognised that a doctor’s duty
of care extends not only to the health and well-being of his
patient but also to a proper respect for his patient’s rights, the
duty to warn can be seen to be a part of the doctor’s duty of
care.
It is, I suggest, a sound and reasonable proposition that the
doctor should be required to exercise care in respecting the
patient’s right of decision. He must acknowledge that in very
many cases factors other than the purely medical will play a
significant part in his patient’s decision-making process. The
– 10 –
doctor’s concern is with health and the relief of pain. These are
the medical objectives. But a patient may well have in mind
circumstances, objectives, and values which he may reasonably not
make known to the doctor but which may lead him to a different
decision from that suggested by a purely medical opinion. The
doctor’s duty can be seen, therefore, to be one which requires him
not only to advise as to medical treatment but also to provide his
patient with the information needed to enable the patient to
consider and balance the medical advantages and risks alongside
other relevant matters, such as, for example, his family, business
or social responsibilities of which the doctor may be only partially,
if at all, informed.
I conclude, therefore, that there is room in our law for a
legal duty to warn a patient of the risks inherent in the treatment
proposed, and that, if such a duty be held to exist, its proper
place is as an aspect of the duty of care owed by the doctor to
his patient. I turn, therefore, to consider whether a duty to warn
does exist in our law and, if it does, its proper formulation and
the conditions and exceptions to which it must be subject.
Some American courts have recognised such a duty. They
have seen it as arising from the patient’s right to know of
material risks, which itself is seen to arise from the patient’s
right to decide for himself whether or not to submit to the
medical treatment proposed. This is the doctrine of informed
consent, to which I have already briefly referred. The landmark
case is a decision of the U.S. Court of Appeals, District of
Columbia Circuit, Canterbury v. Spence (1972) 464 F. 2d 772.
This case, which has now been approved by the District of
Columbia Appeal Court in Grain v. Allison (1982) 443 A. 2d 558, is
discussed learnedly and lucidly in an article published in the Law
Quarterly Review, upon which I have drawn extensively in reaching
my opinion in this appeal. I wish to put on record my deep
appreciation of the help I have derived from the article, the
author of which is Mr. Gerald Robertson: the reference of the
article is “Informed Consent to Medical Treatment”, (1981) 97
L.Q.R. 102. The author deals so comprehensively with the
American, Canadian, and other countries’ case law that I find it
unnecessary to refer to any of the cases to which our attention
has been drawn, interesting and instructive though they are, other
than Canterbury v. Spence and a case in the Supreme Court of
Canada, Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, in which the
judgment of the Supreme Court came too late to be considered by
Mr. Robertson in his article. I have also been greatly assisted by
the note on the present case by Professor Ian Kennedy in the
Modern Law Review, (1984) 47 M.L.R. 454.
It is necessary before discussing the doctrine to bear in
mind that it is far from being universally accepted in the U.S.A.,
or indeed elsewhere. Speaking of the position as it was in 1981
Mr. Robertson said at p. 108:
“The present position in the United States is one of contrast
between the minority of States which have chosen to follow
the lead given by Canterbury by adopting the objective
‘prudent patient’ test . . . and the majority of States which
have been content to adopt the traditional test and
determine the question of disclosure of risks by applying the
‘reasonable doctor’ test.”
– 11 –
There can be little doubt that policy explains the divergence
of view. The prolification of medical malpractice suits in the
U.S.A. has led some courts and some legislatures to curtail or
even to reject the operation of the doctrine in an endeavour to
restrict the liability of the doctor and so discourage the practice
of “defensive medicine” – by which is meant the practice of
doctors advising and undertaking the treatment which they think is
legally safe even though they may believe that it is not the best
for their patient.
The danger of defensive medicine developing in this country
clearly exists – though the absence of the lawyer’s “contingency
tee” (a percentage of the damages for him as his fee if he wins
the case but nothing if he loses) may make it more remote.
However that may be, in matters of civil wrong or tort, courts
are concerned with legal principle: if policy problems emerge,
they are best left to the legislature: McLoughlin v. O’Brian [1983]
1 A.C. 410.
In Canterbury v. Spence the court enunciated four
propositions: (1) the root premise is the concept . . . that every
human being of adult years and of sound mind has a right to
determine what shall be done with his own body. (2) the consent is
the informed exercise of a choice, and that entails an opportunity
to evaluate knowledgeably the options available and the risks
attendant upon each: (1972) 464 F. 2d 772; (3) the doctor must,
therefore, disclose all “material risks”; what risks are “material”
is determined by the “prudent patient” test, which was formulated
by the court at p.787:
“a risk is … material when a reasonable person, in what
the physician knows or should know to be the patient’s
position, would be likely to attach significance to the risk
or cluster of risks in deciding whether or not to forego the
proposed therapy.” (Emphasis supplied).
(4) the doctor, however, has what the court called a “therapeutic
privilege.” This exception enables a doctor to withhold from his
patient information as to risk if it can be shown that a reasonable
medical assessment of the patient would have indicated to the
doctor that disclosure would have posed a serious threat of
psychological detriment to the patient.
In Canada, in Reibl v. Hughes (1980) 114 D.L.R. (3d) 1,
Laskin C.J.C. expressed broad approval of the doctrine as
enunciated in Canterbury v. Spence, though it would seem that
approval of the doctrine was not necessary to a decision in the
case. I find no difficulty in accepting the four propositions
enunciated in Canterbury’s case. But with two notable exception
they have not yet been considered, so far as I am aware, by an
English court. In Chatterton v. Gerson [1981] Q.B. 432, Bristow J.
did consider whether there is any rule in English law comparable
with the doctrine of informed consent. At p. 444 he held that a
doctor ought to warn of what may happen by misfortune however
well the operation may be carried out “if there is a real risk of a
misfortune inherent in the procedure” (emphasis supplied). He held
that whether or not a warning should have been given depended
upon what a reasonable doctor would have done in the
– 12 –
circumstances: and he applied the Bolam test to determine the
reasonableness of what the doctor did. In Hills v. Potter [1984] 1
W.L.R. 641 Hirst J., after discussing the doctrine, also applied the
Bolam test.
In my judgment the merit of the propositions enunciated in
Canterbury v. Spence (1972) 464 F. 2d 772 is that without
excluding medical evidence they set a standard and formulate a
test of the doctor’s duty the effect of which is that the court
determines the scope of the duty and decides whether the doctor
has acted in breach of his duty. This result is achieved first by
emphasis on the patient’s “right of self-determination” and secondly
by the “prudent patient” test. If the doctor omits to warn where
the risk is such that in the court’s view a prudent person in the
patient’s situation would have regarded it as significant, the doctor
is liable.
The Canterbury propositions do indeed attach great
importance to medical evidence, though judgment is for the court.
First, medical evidence is needed in determining whether the risk
is material, i.e. one which the doctor should make known to his
patient. The two aspects of the risk, namely the degree of
likelihood of it occurring and the seriousness of the possible injury
if it should occur, can in most, if not all, cases be assessed only
with the help of medical evidence. And secondly, medical
evidence would be needed to assist the court in determining
whether the doctor was justified on his assessment of his patient
in withholding the warning.
My Lords, I think the Canterbury propositions reflect a legal
truth which too much judicial reliance on medical judgment tends
to obscure. In a medical negligence case where the issue is as to
the advice and information given to the patient as to the
treatment proposed, the available options, and the risk, the court
is concerned primarily with a patient’s right. The doctor’s duty
arises from his patient’s rights. If one considers the scope of the
doctor’s duty by beginning with the right of the patient to make
his own decision whether he will or will not undergo the treatment
proposed, the right to be informed of significant risk and the
doctor’s corresponding duty are easy to understand: for the proper
implementation of the right requires that the doctor be under a
duty to inform his patient of the material risks inherent in the
treatment. And it is plainly right that a doctor may avoid
liability for failure to warn of a material risk if he can show that
he reasonably believed that communication to the patient of the
existence of the risk would be detrimental to the health (including,
of course, the mental health) of his patient.
Ideally, the court should ask itself whether in the particular
circumstances the risk was such that this particular patient would
think it significant if he was told it existed. I would think that,
as a matter of ethics, this is the test of the doctor’s duty. The
law, however, operates not in Utopia but in the world as it is:
and such an inquiry would prove in practice to be frustrated by
the subjectivity of its aim and purpose. The law can, however, do
the next best thing, and require the court to answer the question,
what would a reasonably prudent patient think significant if in the
situation of this patient. The “prudent patient” cannot, however,
always provide the answer for the obvious reason that he is a
– 13 –
norm (like the man on the Clapham omnibus), not a real person:
and certainly not the patient himself. Hence there is the need
that the doctor should have the opportunity of proving that he
reasonably believed that disclosure of the risk would be damaging
to his patient or contrary to his best interest. This is what the
Americans call the doctor’s “therapeutic privilege.” Its true
analysis is that it is a defence available to the doctor which, if he
invokes it, he must prove. On both the test and the defence
medical evidence will, of course, be of great importance.
The “prudent patient” test calls for medical evidence. The
materiality of the risk is a question for the court to decide upon
all the evidence. Many factors call for consideration. The two
critically important medical factors are the degree of probability
of the risk materialising and the seriousness of possible injury, if
it does. Medical evidence will be necessary so that the court may
assess the degree of probability and the seriousness of possible
injury. Another medical factor, upon which expert evidence will
also be required, is the character of the risk. In the event of an
operation is the risk common to all surgery, e.g. sepsis, cardiac
arrest, and the other risks associated with surgery and the
administration of an anaesthetic? Or is it specific to the
particular operation under consideration? With the world-wide
development and use of surgical treatment in modern times the
court may well take the view that a reasonable person in the
patient’s situation would be unlikely to attach significance to the
general risks: but it is not difficult to foresee circumstances
particular to a patient in which even the general risks of surgery
should be the subject of a warning by his doctor: e.g. a heart or
lung or blood condition. Special risks inherent in a recommended
operational procedure are more likely to be material. The risk of
partial paralysis, as in this case where the purpose of the
operation was not to save life but merely to relieve pain,
illustrates the sort of question which may face first the doctor
and later the court. Clearly medical evidence will be of the
utmost importance in determining whether such a risk is material:
but the question for the court is ultimately legal, not medical in
character.
If the doctor admits or the court finds that on the prudent
patient test he should have disclosed the risk, he has available the
defence that he reasonably believed it to be against the best
interest of his patient to disclose it. Here also medical evidence,
including the evidence of the doctor himself, will be vital. The
doctor himself will normally be an essential witness: and the
reasonableness of his assessment may well need the support of
independent medical testimony.
My conclusion as to the law is therefore this. To the
extent that I have indicated I think that English law must
recognise a duty of the doctor to warn his patient of risk inherent
in the treatment which he is proposing: and especially so, if the
treatment be surgery. The critical limitation is that the duty is
confined to material risk. The test of materiality is whether in
the circumstances of the particular case the court is satisfied that
a reasonable person in the patient’s position would be likely to
attach significance to the risk. Even if the risk be material, the
doctor will not be liable if upon a reasonable assessment of his
patient’s condition he takes the view that a warning would be
detrimental to his patient’s health.
– 14 –
Conclusion
Applying these principles to the present case, I ask first:
has the appellant shown the risk of damage to the spinal cord to
have been a material risk? The risk was slight – less than one
per cent: but, if it were to materalise, it could result in severe
injury. It was for the appellant, as plaintiff, to establish that the
risk was so great that the doctor should have appreciated that it
would be considered a significant factor by a prudent patient in
the appellant’s situation deciding whether or not to have the
operation. The medical evidence even of Mr. Uttley, the
appellant’s expert witness, gets nowhere near establishing the
materiality of the risk in the sense just outlined. It is, of course,
possible that Mr. Uttley’s evidence was not directed to anything
other than negligence in the Bolam sense. If so, the appellant,
who now relies on the principle of informed consent, must accept
the consequences: – it was up to her to prove such a case, if she
were seeking to establish it. Further, we do not know Mr.
Falconer’s assessment of his patient. It is possible that, had he
lived, he could have enlightened the court on much that would
have been relevant. After an anxious consideration of the
evidence I do not find it possible to say that it has been proved
that Mr. Falconer failed in his duty when he omitted – as we must
assume that he did – to warn his patient of the risk of injury to
the spinal cord.
At the end of the day, therefore, the substitution of the
Canterbury propositions for the Bolam test of duty and breach of
duty does not avail the appellant because the evidence does not
enable her to prove that Mr. Falconer was in breach of his duty
when he omitted the warning. Lack of evidence was always her
difficulty; and it remains so, even though, contrary to the
submission of the respondents, the law, in my view, recognises a
right of a patient of sound understanding to be warned of material
risks save in the exceptional circumstances to which I have
referred. Accordingly, I would dismiss the appeal.
LORD DIPLOCK
My Lords,
Such facts as emerged in evidence at the trial of the action
that is the subject of this appeal have been set out by my noble
and learned friend, Lord Scarman. They are characterised by their
extreme paucity. We know nothing of the emotional idiosyncracies
of the plaitiff, Mrs. Sidaway (“the patient”), even in ordinary
health let alone under stress of ill-health and the prospects of
waiting for surgical treatment at the hands of Mr. Falconer (“the
neuro-surgeon”); and yet a doctor’s duty of care, whether he be
general practitioner or consulting surgeon or physician is owed to
that patient and none other, idiosyncracies and all. Inevitably all
treatment, medical or surgical, involves some degree of risk that
the patient’s condition will be worse rather than better for
undergoing it. Statistically, the chances of any risk of the
proposed treatment going awry at all may be small – but
– 15 –
particularly if surgery is involved (though this is by no means
confined to surgery) it is never totally absent and the degree of
possible worsening involved may cover a whole spectrum of
disabilities from mild occasional discomfort to what might justify
the epithet catastrophic. All these are matters which the doctor
will have taken into consideration in determining, in the exercise
of his professional skill and judgment, that it is in the patient’s
interest that he should take the risk involved and undergo the
treatment recommended by the doctor.
There is no evidence in the instant case that the patient
asked the neuro-surgeon a single question about whether there
were any risks involved in undergoing the operation that he was
proposing for her, or if there were, what were the consequences of
those risks or the chances of their occurring. So there are
eliminated from our consideration matters of clinical judgment of
the neuro-surgeon as to how to conduct a bilateral discussion with
the patient in terms best calculated not to scare her off from
undergoing an operation which, in the exercise of the paramount
duty of care he owed to her individually to exercise his skill and
judgment in endeavouring to heal her, he is satisfied that it is in
her interests to undergo despite such risks as may be entailed.
Likewise we do not know save in vaguest terms which
amount to little more than speculation but which the trial judge
was prepared to hold on balance of probabilities to be a fact,
what risks the neuro-surgeon did mention to the patient. The risks
which it is contended the neuro-surgeon ought to have drawn to
the attention of the patient, even though unasked, were damage to
the nerve roots and damage to the spinal cord. The occurrence of
these were possible however skilfully the intended operation was
carried out; and the consequences of such damage might cover a
whole spectrum of mishaps ranging from localised numbness or pins
and needles to, in the worst cases, some degree of paraplegia – as
unfortunately happened in the patient’s case. Because of the
physical area of the body in which the operation takes place, these
are closely related risks, one or other of which may occur. The
combined chance of one or other occurring was put by the
neurological experts at something below two per cent., of which
injury to the spinal cord was rather more likely to have serious
consequences if it were to happen, but the chances of its
happening were was less than half the chance of damage to the
nerve roots, i.e. less than one in a hundred.
These two risks are specific to operations on the spinal
column; but in addition there are involved the risks inherent in any
general surgery especially if conducted under anaesthesia. As in
the case of spinal column surgery, the consequences of these other
risks may be minor and evanescent or may be gravely and
permanently disabling or even result in death itself. I find it
significant that no common law jurisdiction either American or
Canadian which has espoused the doctrine of “informed consent”
appears to have suggested that the surgeon was under a duty to
warn his patient of such general risks which, rare though they may
be, do happen and they are real risks.
We are dealing in the present appeal with a patient who has
expressed to the neuro-surgeon no anxiety about any risks of the
proposed operation going wrong; and we are likewise confronted
– 16 –
with a neuro-surgeon whose practice, in the absence of specific
questioning, was to mention to patients to whom he recommended
such an operation for relief of pain as he was proposing to
undertake on the patient in the instant case the risk of damage to
the nerve roots with deleterious effect of varying degrees of
discomfort or more serious disability, if the one in fifty chance
occurred and despite the utmost operating skill something went
wrong.
What we do know, however, and this is in my view
determinative of this appeal, is that all the expert witnesses
specialising in neurology (including the patient’s own expert
witness, Mr. Uttley who would not himself have undertaken a
similar operation without waiting a period of time, after October
1974, to see what developed as to the persistence of the patient’s
pain) agreed that there was a responsible body of medical opinion
which would have undertaken the operation at the time the neuro-
surgeon did and would have warned the patient of the risk involved
in the operation in substantially the same terms as the trial judge
found on the balance of probabilities the neuro-surgeon had done,
i.e. without specific reference to risk of injuring the spinal cord.
My Lords, it is the very paucity of facts in evidence that
makes it possible, in my view, to treat this appeal as raising a
naked question of legal principle. It falls within a pattern of
frequently occurring cases, which involve no consideration of the
idiosyncracies of an exceptional patient. For the last quarter-of-a-
century the test applied in English law as to whether a doctor has
fulfilled his duty of care owed to his patient has been that set out
in the summing-up to the jury by McNair J. in Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582. I will call
this the Bolam test. At any rate so far as disgnosis and
treatment is concered, the Bolam test has twice received the
express approval of this House.
The Bolam test is far from new, its value is that it brings
up to date and re-expresses in the light of modern conditions in
which the art of medicine is now practised, an ancient rule of
common law. The original rule can be traced to the maxim
spondet peritiam artis et imperitia culpae admuneratur. It goes
back to the origin of assumpsit; it applied to all articifers and was
firmly founded in “case” (moderniter negligence) although it may
be of interest to note that as long ago as 1767 in Slater v. Baker
2 Wils. 359, a suggestion that where injury was caused by surgery
the form of action lay in trespass vi et armis was rejected with
scant sympathy by the Court of King’s Bench.
The standard of skill and judgment in the particular area
of the art of medicine in which the doctor practised that was
called for by the expression peritia was the standard of ordinary
skill and care that could be expected to be shown by a doctor who
had successfully completed the training to qualify as a doctor,
whether as general practitioner or as consultant in a speciality if
he held himself out as practising as such, as the case might be.
But unless the art in which the articifer claims to have acquired
skill and judgment is stagnant so that no improvement in methods
or knowledge is sought – and of few is this less true than
medicine and surgery over the last half-century – advances in the
ability to heal resulting from the volume of research, clinical as
– 17 –
well as technological, will present doctors with alternative
treatments to adopt and a choice to select that treatment (it may
be one of several) that is in their judgment likely at the time to
prove most efficacious or ameliorating to the health of each
particular patient committed to their care.
Those members of the public who seek medical or surgical
aid would be badly served by the adoption of any legal principle
that would confine the doctor to some long-established, well-tried
method of treatment only, although its past record of success
might be small, if he wanted to be confident that he would not
run the risk of being held liable in negligence simply because he
tried some more modern treatment, and by some unavoidable
mischance it failed to heal but did some harm to the patient.
This would encourage “defensive medicine” with a vengeance. The
merit of the Bolam test is that the criterion of the duty of care
owed by a doctor to his patient is whether he has acted in
accordance with a practice accepted as proper by a body of
responsible and skilled medical opinion. There may be a number
of different practices which satisfy this criterion at any particular
time. These practices are likely to alter with advances in medical
knowledge. Experience shows that, to the great benefit of human
kind, they have done so, particularly in the recent past. That is
why fatal diseases such as smallpox and tuberculosis have within
living memory become virtually extinct in countries where modern
medical care is generally available.
In English jurisprudence the doctor’s relationship with his
patient which gives rise to the normal duty of care to exercise his
skill and judgment to improve the patient’s health in any particular
respect in which the patient has sought his aid, has hitherto been
treated as single comprehensive duty covering all the ways in
which a doctor is called upon to exercise his skill and judgment in
the improvement of the physical or mental condition of the patient
for which his services either as a general practitioner or specialist
have been engaged. This general duty is not subject to dissection
into a number of component parts to which different criteria of
what satisfy the duty of care apply, such as diagnosis, treatment,
advice (including warning of any risks of something going wrong
however skilfully the treatment advised is carried out.) The Bolam
case itself embraced failure to advise the patient of the risk
involved in the electric shock treatment as one of the allegations
of negligence against the surgeon as well as negligence in the
actual carrying out of treatment in which that risk did result in
injury to the patient. The same criteria were applied to both
these aspects of the surgeon’s duty of care. In modern medicine
and surgery such dissection of the various things a doctor has to
do in the exercise of his whole duty of care owed to his patient is
neither legally meaningful nor medically practicable. Diagnosis
.itself may involve exploratory surgery, the insertion of drugs by
‘injection (or vaccination) involves intrusion upon the body of the
patient and oral treatment by drugs although it involves no
physical intrusion by the doctor on the patient’s body may in the
case of particular patients involve serious and unforeseen risks.
My Lords, no convincing reason has in my view been
advanced before your Lordships that would justify treating the
Bolam test as doing anything less than laying down a principle of
English law that is comprehensive and applicable to every aspect
– 18 –
of the duty of care owed by a doctor to his patient in the
exercise of his healing functions as respects that patient. What
your Lordships have been asked to do – and it is within your
power to do so – is to substitute a new and different rule for that
part only of the well established Bolam test as comprises a
doctor’s duty to advise and warn the patient of risks of something
going wrong in the surgical or other treatment that he is
recommending.
The juristic basis of the proposed substitution which
originates in certain state court jurisdictions of the United States
of America and has found some favour in modified form by the
Supreme Court of Canada, appears to me, with great respect, to
be contrary to English law. Its foundation is the doctrine of
“informed consent” which was originally based on the assumption
made in U.S. Court of Appeals, District of Columbia Circuit, in
Canterbury v. Spence (1972) 464 F. 2d 772, where the cynic might
be forgiven for remarking it enabled a defence under the State
Statute of Limitations to be outmanoeuvred, that, prima facie, the
cause of action in a case of surgery was trespass to the person
unless “informed consent” to the particular battery involved in the
surgical operation could be proved. From a period long before
American independence this, as I have pointed out, has never been
so in English law. The relevant form of action has been based in
negligence, i.e. in assumpsit, alone.
The Supreme Court of Canada, after some initial
vaccilation, rejected trespass to the person, i.e. battery, as the
cause of action in cases of surgery but endeavoured to transfer
the concept of “informed consent” to a patient’s cause of action in
negligence, into which, in my opinion, it simply cannot be made to
fit. Consent to battery is a state of mind personal to the victim
of the battery and any information required to make his consent
qualify as informed must be relevant information either actually
possessed by him or which he is estopped from denying he
possessed, because he so acted towards the defendant as to lead to
the latter reasonably to assume the relevant information was
known to him. There is no room in the concept of informed
consent for the “objective” patient (as he is referred to at one
point by the Supreme Court of Canada) to whom the doctor is
entitled, without making any inquiry whether it is the fact or not,
to attribute knowledge of some risks but not of others. It may be
that most patients, though not necessarily all, have a vague
knowledge that there may be some risk in any form of medical
treatment: but it is flying in the face of reality to assume that
all patients from the highest to the lowest standard of education
or intelligence are aware of the extent and nature of the risks
which, notwithstanding the exercise of skill and care in carrying
out the treatment, are inevitably involved in medical treatment of
whatever kind it be but particularly surgical. Yet it is not merely
conceded but specifically asserted in the Canadian cases that it is
no part of the duty of care on the part of the doctor to go out
of his way to draw the attention of his patient to these. On what
logical or juristic basis can the need for informed consent be
confined to some risks and not extended to others that are also
real – and who decides which risk falls into which class?
My Lords, I venture to think that in making this separation
between that part of the doctor’s duty of care that he owes to
– 19 –
each individual patient, which can be described as a duty to advise
upon treatment and warn of its risks, the courts have misconceived
their functions as the finders of fact in cases depending upon the
negligent exercise of professional skill and judgment. In matters
of diagnosis and the carrying out of treatment the court is not
tempted to put itself in the surgeon’s shoes; it has to rely upon
and evaluate expert evidence, remembering that it is no part of
its task of evaluation to give effect to any preference it may
have for one responsible body of professional opinion over another,
provided it is satisfied by the expert evidence that both qualify as
responsible bodies of medical opinion. But when it comes to
warning about risks, the kind of training and experience that a
judge will have undergone at the bar makes it natural for him to
say (correctly) it is my right to decide whether any particular
thing is done to my body, and I want to be fully informed of any
risks there may be involved of which I am not already aware from
my general knowledge as a highly educated man of experience, so
that I may form my own judgment as to whether to refuse the
advised treatment or not.
No doubt if the patient in fact manifested this attitude by
means of questioning, the doctor would tell him whatever it was
the patient wanted to know; but we are concerned here with
volunteering unsought information about risks of the proposed
treatment failing to achieve the result sought or making the
patient’s physical or mental condition worse rather than better.
The only effect that mention of risks can have on the patient’s
mind, if it has any at all, can be in the direction of deterring the
patient from undergoing the treatment which in the expert opinion
of the doctor it is in the patient’s interest to undergo. To decide
what risks the existence of which a patient should be voluntarily
warned and the terms in which such warning, if any, should be
given, having regard to the effect that the warning may have, is
as as much an exercise of professional skill and judgment as any
other part of the doctor’s comprehensive duty of care to the
individual patient, and expert medical evidence on this matter
should be treated in just the same way. The Bolam test should be
applied.
I agree with your Lordships that this appeal should be
dismissed.
LORD KEITH OF KINKEL
My Lords,
I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend, Lord Bridge of
Harwich. I agree with it, and for the reason which he gives would
dismiss the appeal.
– 20 –
LORD BRIDGE OF HARWICH
My Lords,
The facts giving rise to this appeal have been fully
recounted by my noble and learned friend, Lord Scarman. I draw
attention in briefest summary only to those which seem to me
central to the issue of law arising for decision.
The appellant underwent at the hospital for which the first
respondents are the responsible authority an operation on her
cervical vertebrae performed by a neuro-surgeon, since deceased,
whose executors are the second respondents. The nature of the
operation was such that, however skilfully performed, it involved a
risk of damage to the nerve root at the site of the operation or
to the spinal cord. The trial judge described that risk as “best
expressed to a layman as a one to two per cent. risk of ill effects
ranging from the mild to the catastrophic.” The appellant in fact
suffered, without negligence on the surgeon’s part in the
performance of the operation, a degree of damage to the spinal
cord of which the effects, if not catastrophic, were certainly
severe. Damages have been agreed, subject to liability, in the
sum of £67,500.
The appellant denied that she had seen the surgeon at all
before the operation was performed. This evidence the judge
rejected. He found that, before the appellant consented to
undergo the operation, the surgeon explained the nature of the
operation to her in simple terms and warned her of the possibility
and likely consequences of damage to the nerve root, but did not
refer to the risk of damage to the spinal cord. Most
unfortunately, the surgeon who performed the operation died before
these proceedings were instituted. Accordingly the trial judge, the
Court of Appeal, and your Lordships’ House have ail been denied
the advantage of what would clearly have been vital evidence on
the issue of liability, not only the surgeon’s own account of
precisely of what he had told this appellant, but also his
explanation of the reasons for his clinical judgment that, in her
case, the information he gave her about the operation and its
attendant risks was appropriate and sufficient. The judge was thus
driven to base the finding to which I have earlier referred in part
on inference from documents, but mainly on the evidence of other
doctors as to what they knew of the deceased surgeon’s customary
practice when discussing with patients an operation of the kind the
appellant was to undergo. The result is that liability falls to be
considered, in effect, in relation to that customary practice,
independently of the vitally important individual doctor/patient
relationship which must play so large a part in any discussion of a
proposed operation with a patient. That introduces an element of
artificiality into the case which we may deplore but cannot avoid.
There was a difference of opinion between the neuro-
surgeons called as expert witnesses as to whether they themselves
would, in the circumstances, have warned the appellant specifically
of the risk of damage to the spinal cord. But the one expert
witness called for the appellant agreed readily and without
reservation that the deceased surgeon, in omitting any such
warning, would have been following a practice accepted as proper
by a responsible body of competent neuro-surgeons.
– 21 –
Broadly, a doctor’s professional functions may be divided
into three phases: diagnosis, advice, and treatment. In performing
his functions of diagnosis and treatment, the standard by which
English law measures the doctor’s duty of care to his patient is
not open to doubt. “The test is the standard of the ordinary
skilled man exercising and professing to have that special skill.”
These are the words of McNair J. in Bolam v. Friern Hospital
Management Committee [1957] 1 W.L.R. 582, at p. 586, approved
by this House in Whitehouse v. Jordan [1981] 1 WLR 246 (per
Lord Edmund-Davies at p. 258) and in Maynard v. West Midland
Regional Health Authority [1984] 1 W.L.R. 634 (per Lord Scarman
at p. 638.) The test is conveniently referred to as the Bolam
test. In Maynard’s case, Lord Scarman, with whose speech the
other four members of the Appellate Committee agreed, further
cited with approval the words of Lord President Clyde in Hunter
v. Hanley, 1955 SLT 213, 217:
“In the realm of diagnosis and treatment there is ample
scope for genuine difference of opinion and one man clearly
is not negligent merely because his conclusion differs from
that of other professional men . . . The true test for
establishing negligence in diagnosis or treatment on the part
of a doctor is whether he has been proved to be guilty of
such failure as no doctor of ordinary skill would be guilty of
if acting with ordinary care . . .”
The language of the Bolam test clearly requires a different degree
of skill from a specialist in his own special field than from a
general practitioner. In the field of neuro-surgery it would be
necessary to substitute for Lord President Clyde’s phrase “no
doctor of ordinary skill,” the phrase “no neuro-surgeon of ordinary
skill.” All this is elementary and, in the light of the two recent
decisions of this House referred to, firmly established law.
The important question which this appeal raises is whether
the law imposes any, and if so what, different criterion as the
measure of the medical man’s duty of care to his patient when
giving advice with respect to a proposed course of treatment. It
is clearly right to recognise that a conscious adult patient of
sound mind is entitled to decide for himself whether or not he will
submit to a particular course of treatment proposed by the doctor,
most significantly surgical treatment under general anaesthesia.
This entitlement is the foundation of the doctrine of “informed
consent” which has led in certain American jurisdictions to
decisions, and in the Supreme Court of Canada, to dicta, on which
the appellant relies, which would oust the Bolam test and
substitute an “objective” test of a doctor’s duty to advise the
patient of the advantages and disadvantages of undergoing the
treatment proposed and more particularly to advise the patient of
the risks involved.
There are, it appears to me, at least theoretically, two
extreme positions which could be taken. It could be argued that,
the patient’s consent is to be fully informed, the doctor must
specifically warn him of all risks involved in the treatment
offered, unless he has some sound clinical reason not to do so.
Logically, this would seem to be the extreme to which a truly
objective criterion of the doctor’s duty would lead. Yet this
position finds no support from any authority, to which we have
– 22 –
been referred, in any jurisdiction. It seems to be generally
accepted that there is no need to warn of the risks inherent in all
surgery under general anaesthesia. This is variously explained on
the ground that the patient may be expected to be aware of such
risks or that they are relatively remote. If the law is to impose
on the medical profession a duty to warn of risks to secure
“informed consent” independently of accepted medical opinion of
what is appropriate, neither of these explanations for confining the
duty to special as opposed to general surgical risks seems to me
wholly convincing.
At the other extreme it could be argued that, once the
doctor has decided what treatment is, on balance of advantages
and disadvantages, in the patient’s best interest, he should not
alarm the patient by volunteering a warning of any risk involved,
however grave and substantial, unless specifically asked by the
patient. I cannot believe that contemporary medical opinion would
support this view, which would effectively exclude the patient’s
right to decide in the very type of case where it is most
important that he should be in a position to exercise that right
and, perhaps even more significantly, to seek a second opinion as
to whether he should submit himself to the significant risk which
has been drawn to his attention. I should perhaps add at this
point, although the issue does not strictly arise in this appeal,
that, when questioned specifically by a patient of apparently sound
mind about risks involved in a particular treatment proposed, the
doctor’s duty must, in my opinion, be to answer both truthfully
and as fully as the questioner requires.
The decision mainly relied on to establish a criterion of the
doctor’s duty to disclose the risks inherent in a proposed treatment
which is prescribed by the law and can be applied independently of
any medical opinion or practice is that of the District of Columbia
Circuit Court of Appeals in Canterbury v. Spence (1972) 464 F. 2d
772. The judgment of the Court (Wright, Leventhal and Robinson
JJ.), delivered by Robinson J., expounds the view that an objective
criterion of what is a sufficient disclosure of risk is necessary to
ensure that the patient is enabled to make an intelligent decision
and cannot be left to be determined by the doctors. He said at
p. 784:
“Respect for the patient’s right of self-determination on
particular therapy demands a standard set by law for
physicians rather than one which physicians may or may not
impose upon themselves.”
In an attempt to define the objective criterion it is said at
p. 787 that “the issue on non-disclosure must be approached from
the viewpoint of the reasonableness of the physician’s divulgence in
terms of what he knows or should know to be the patient’s
informational needs.” A risk is required to be disclosed “when a
reasonable person, in what the physician knows or should know to
be the patient’s position, would be likely to attach significance to
the risk or cluster of risks in deciding whether or not to forego
the proposed therapy”: (1972) 464 F. 2d 772; 787. The judgment
adds at p. 788: “Whenever non-disclosure of particular risk
information is open to debate by reasonable-minded men, the issue
is for the finder of facts.”
– 23 –
The court naturally recognises exceptions from the duty laid
down in the case of an unconscious patient, an immediate
emergency, or a case where the doctor can establish that
disclosure would be harmful to the patient.
Expert medical evidence will be needed to indicate the
nature and extent of the risks and benefits involved in the
treatment (and presumably of any alternative course.) But the
court affirms at p. 792: “Experts are unnecessary to a showing of
the materiality of a risk to a patient’s decision on treatment, or
to the reasonably, expectable effect of risk disclosure on the
decision.” In English law, if this doctrine were adopted, expert
medical opinion as to whether a particular risk should or should
not have been disclosed would presumably be inadmissible in
evidence.
I recognise the logical force of the Canterbury doctrine,
proceeding from the premise that the patient’s right to make his
own decision must at ail costs be safeguarded against the kind of
medical paternalism which assumes that “doctor knows best.” But,
with all respect, I regard the doctrine as quite impractical in
application for three principal reasons. First, it gives insufficient
weight to the realities of the doctor/patient relationship. A very
wide variety of factors must enter into a doctor’s clinical
judgment not only as to what treatment is appropriate for a
particular patient, but also as to how best to communicate to the
patient the significant factors necessary to enable the patient to
make an informed decision whether to undergo the treatment. The
doctor cannot set out to educate the patient to his own standard
of medical knowledge of all the relevant factors involved. He
may take the view, certainly with some patients, that the very
fact of his volunteering, without being asked, information of some
remote risk involved in the treatment proposed, even though he
describes it as remote, may lead to that risk assuming an undue
significance in the patient’s calculations. Secondly, it would seem
to me quite unrealistic in any medical negligence action to confine
the expert medical evidence to an explanation of the primary
medical factors involved and to deny the court the benefit of
evidence of medical opinion and practice on the particular issue of
disclosure which is under consideration. Thirdly, the objective test
which Canterbury propounds seems to me to be so imprecise as to
be almost meaningless. If it is to be left to individual judges to
decide for themselves what “a reasonable person in the patient’s
position” would consider a risk of sufficient significance that he
should be told about it, the outcome of litigation in this field is
likely to be quite unpredictable.
I note with interest from a learned article entitled Informed
Consent to Medical Treatment by Mr. Gerald Robertson, Lecturer
in Law, University of Leicester, (1981) 97 L.Q.R. 102, 108, that
only a minority of states in the United States of America have
chosen to follow Canterbury and that since 1975 “there has been a
growing tendency for individual states to enact legislation which
severely curtails the operation of the doctrine of informed
consent.” I should also add that I find particularly cogent and
convincing the reasons given for declining to follow Canterbury by
the Supreme Court of Virginia in Bly v. Rhoads (1976) 222 S.E. 2d
783.
– 24 –
Having rejected the Canterbury doctrine as a solution to the
problem of safeguarding the patient’s right to decide whether he
will undergo a particular treatment advised by his doctor, the
question remains whether that right is sufficiently safeguarded by
the application of the Bolam test without qualification to the
determination of the question what risks inherent in a proposed
treatment should be disclosed. The case against a simple
application of the Bolam test is cogently stated by Laskin C.J.C.,
giving the judgment of the Supreme Court of Canada in Reibl v.
Hughes (1980) 114 D.L.R. (3d) 1; 13:
“To allow expert medical evidence to determine what risks
are material and, hence, should be disclosed and,
correlatively, what risks are not material is to hand over to
the medical profession the entire question of the scope of
the duty of disclosure, including the question whether there
has been a breach of that duty. Expert medical evidence
is, of course, relevant to findings as to the risks that reside
in or are a result of recommended surgery or other
treatment. It will also have a bearing on their materiality
but this is not a question that is to be concluded on the
basis of the expert medical evidence alone. The issue under
consideration is a different issue from that involved where
the question is whether the doctor carried out his
professional activities by applicable professional standards.
What is under consideration here is the patient’s right to
know what risks are involved in undergoing or foregoing
certain surgery or other treatment.”
I fully appreciate the force of this reasoning, but can only accept
it subject to the important qualification that a decision what
degree of disclosure of risks is best calculated to assist a
particular patient to make a rational choice as to whether or not
to undergo a particular treatment must primarily be a matter of
clinical judgement. It would follow from this that the issue
whether non-disclosure in a particular case should be condemned as
a breach of the doctor’s duty of care is an issue to be decided
primarily on the basis of expert medical evidence, applying the
Bolam test. But I do not see that this approach involves the
necessity “to hand over to the medical profession the entire
question of the scope of the duty of disclosure, including the
question whether there has been a breach of that duty.” Of
course, if there is a conflict of evidence as to whether a
responsible body of medical opinion approves of non-disclosure in a
particular case, the judge will have to resolve that conflict. But
even in a case where, as here, no expert witness in the relevant
medical field condemns the non-disclosure as being in conflict with
accepted and responsible medical practice, I am of opinion that
the judge might in certain circumstances come to the conclusion
that disclosure of a particular risk was so obviously necessary to
an informed choice on the part of the patient that no reasonably
prudent medical man would fail to make it. The kind of case I
have in mind would be an operation involving a substantial risk of
grave adverse consequences, as, for example, the ten per cent. risk
of a stroke from the operation which was the subject of the
Canadian case of Reibl v. Hughes (1980) 114 D.L.R. (3d) 1. In
such a case, in the absence of some cogent clinical reason why
the patient should not be informed, a doctor, recognising and
respecting his patient’s right of decision, could hardly fail to
appreciate the necessity for an appropriate warning.
– 25 –
In the instant case I can see no reasonable ground on which
the judge could properly reject the conclusion to which the
unchallenged medical evidence led in the application of the Bolam
test. The trial judge’s assessment of the risk at one to two per
cent. covered both nerve root and spinal cord damage and covered
a spectrum of possible ill effects “ranging from the mild to the
catastrophic.” In so far as it is possible and appropriate to
measure such risks in percentage terms – some of the expert
medical witnesses called expressed a marked and understandable
reluctance to do so – the risk of damage to the spinal cord of
such severity as the appellant in fact suffered was, it would
appear, certainly less than one per cent. But there is no yardstick
either in the judge’s findings or in the evidence to measure what
fraction of one per cent. that risk represented. In these
circumstances, the appellant’s expert witness’s agreement that the
non-disclosure complained of accorded with a practice accepted as
proper by a responsible body of neuro-surgical opinion afforded the
respondents a complete defence to the appellant’s claim.
I would dismiss the appeal.
LORD TEMPLEMAN
My Lords,
The appellant patient Mrs. Sidaway claims £67,500 damages
against the estate of the deceased neuro-surgeon Mr. Murray A.
Falconer for his failure to warn her of the risk that the operation
which he recommended and performed with the consent of Mrs.
Sidaway might cause the damage to her spinal cord which in fact
occurred and the disability from which she is now suffering.
Between 1958 and 1960 Mrs. Sidaway suffered pain as a
result of deformity in the region of her fifth and sixth cervicle
vertebrae. Conservative treatment, including collar, traction and
manipulation failed to effect a cure. In 1960 Mr. Falconer
removed the disc between the affected vertebrae and fused them
with a bone graft. After some time the pain disappeared. Mrs.
Sidaway’s condition was reviewed annually until 1970 and in 1973
Mr. Falconer’s secretary wrote to Mrs. Sidaway enquiring after her
health. The evidence is that Mr. Falconer was experienced,
competent, conscientious and considerate in his practice and in his
attitude to his patients including Mrs. Sidaway. In 1973 Mrs.
Sidaway complained again of persistent pain. She was examined by
Mr. Falconer, went into hospital on 11 October, and was operated
upon by Mr. Falconer on 29 October. Mr. Falconer has since died.
Mrs. Sidaway said that during her 18 days in hospital prior to the
operation Mr. Falconer did not examine or speak to her. The trial
judge rightly assumed that Mrs. Sidaway’s recollection was
understandably at fault and that she was seen and advised by Mr.
Falconer.
Mrs. Sidaway was suffering increasing pain as a result of
pressure on the fourth cervicle nerve root. The operation proposed
and carried out by Mr. Falconer required the excision of part of a
– 26 –
vertebra in order to obtain access to the channel through which
the affected nerve travelled. This would enable the removal of
boney excrescencies from the fourth vertebra and the freeing of
the nerve within its channel by the use of a dental drill. The
operation involved working within three millimetres of the spinal
cord, exposing the cord and interfering with the nerve root
Basing himself on evidence of the usual practice of Mr.
Falconer and apparently assuming that Mr. Falconer’s explanation
to every patient followed the same practice, the trial judge,
without the benefit of any direct evidence from Mr. Falconer or
Mrs. Sidaway, made the confident finding that Mr. Falconer
probably explained the nature of the operation to Mrs. Sidaway in
simple terms and the reasons for performing the operation and
mentioned the possibility of damage to a nerve root and the
consequences of doing so but the judge was “satisfied that he did
not refer to the danger of cord damage or to the fact that this
was an operation of choice rather than necessity.” The judge was
also satisfied that “even if the surgeon exercised proper care and
skill, the spinal cord might be damaged causing weakness or
paralysis . . . and that the nerve root might be damaged causing
pain and/or weakness . . .” Mrs. Sidaway’s spinal cord was in fact
damaged inadvertently without negligence on the part of Mr.
Falconer, the performer of the operation.
In my opinion a simple and general explanation of the
nature of the operation should have been sufficient to alert Mrs.
Sidaway to the fact that a major operation was to be performed
and to the possibility that something might go wrong at or near
the site of the spinal cord or the site of the nerve root causing
serious injury. If, as the judge held, Mr. Falconer probably
referred expressly to the possibility of damage to a nerve root and
to the consequences of such damage, this warning could only have
reinforced the possibility of something going wrong in the course
of a delicate operation performed in a vital area with resultant
damage. In view of the fact that Mr, Falconer recommended the
operation, Mrs. Sidaway must have been told or could have
assumed that Mr. Falconer considered that the possibilities of
damage were sufficiently remote to be ignored. Mrs. Sidaway
could have asked questions. If she had done so, she could and
should have been informed that there was an aggregrate risk of
between one per cent. and two per cent. risk of some damage
either to the spinal cord or to a nerve root resulting in injury
which might vary from irritation to paralysis. But to my mind
this further information would only have reinforced the obvious,
with the assurance that the maximum risk of damage, slight or
serious, did not exceed two per cent. Mr. Falconer may
reasonably have taken the view that Mrs. Sidaway might be
confused, frightened or misled by more detailed information which
she was unable to evaluate at a time when she was suffering from
stress, pain and anxiety. A patient may prefer that the doctor
should not thrust too much detail at the patient. We do not know
how Mr. Falconer explained the operation to Mrs. Sidaway and we
do not know the reasons for the terms in which he couched his
explanation.
On the assumption that Mr. Falconer explained that it was
necessary to remove bone and free a nerve root from pressure
near the spinal cord, it seems to me that the possibility of
– 27 –
damage to a nerve root or to the spinal cord was obvious. The
operation was skilfully performed but by mishap the remote risk of
damage to the spinal cord unfortunately caused the disability from
which Mrs. Sidaway is now suffering. However much sympathy
may be felt for Mrs. Sidaway and however much in hindsight the
operation may be regretted by her, the question now is whether
Mr. Falconer was negligent in the explanation which he gave.
In my opinion if a patient knows that a major operation
may entail serious consequences, the patient cannot complain of
lack of information unless the patient asks in vain for more
information or unless there is some danger which by its nature or
magnitude or for some other reason requires to be separately
taken into account by the patient in order to reach a balanced
judgment in deciding whether or not to submit to the operation.
To make Mr. Falconer liable for damages for negligence, in not
expressly drawing Mrs. Sidaway’s attention to the risk of damage
to the spinal cord and its consequences, Mrs. Sidaway must show
and fails to show that Mr. Falconer was not entitled to assume, in
the absence of questions from Mrs. Sidaway, that his explanation
of the nature of the operation was sufficient to alert Mrs. Sidaway
to the general danger of unavoidable and serious damage inherent
in the operation but sufficiently remote to justify the operation.
There is no reason to think that Mr. Falconer was aware that, as
Mrs. Sidaway deposed, a specific warning and assessment of the
risk of spinal cord damage would have influenced Mrs. Sidaway to
decline the operation although the general explanation which she
was given resulted in her consenting to the operation.
There is no doubt that a doctor ought to draw the attention
of a patient to a danger which may be special in kind or
magnitude or special to the patient. In Reibl v. Hughes (1980) 114
D.L.R (3d) 1, a surgeon advised an operation on the brain to avoid
a threatened stroke. The surgeon knew or ought to have known
that there was a four per cent. chance that the operation might
cause death and a ten per cent. chance that the operation might
precipitate the very stroke which the operation was designed to
prevent. The patient ought to have been informed of these
specific risks in order to be able to form a balanced judgment in
deciding whether or not to submit to the operation.
When a patient complains of lack of information, the court
must decide whether the patient has suffered harm from a general
danger inherent in the operation or from some special danger. In
the case of a general danger the court must decide whether the
information afforded to the patient was sufficient to alert the
patient to the possibility of serious harm of the kind in fact
suffered. If the practice of the medical profession is to make
express mention of a particular kind of danger, the court will have
no difficulty in coming to the conclusion that the doctor ought to
have referred expressly to this danger as a special danger unless
the doctor can give reasons to justify the form or absence of
warning adopted by him. Where the practice of the medical
profession is divided or does not include express mention, it will
be for the court to determine whether the harm suffered is an
example of a general danger inherent in the nature of the
operation and if so whether the explanation afforded to the patient
was sufficient to alert the patient to the general dangers of which
the harm suffered is an example. If a doctor conscientiously
– 28 –
endeavours to explain the arguments for and against a major
operation and the possibilities of benefiting and the dangers, the
court will be slow to conclude that the doctor has been guilty of
a breach of duty owed to the patient merely because the doctor
omits some specific item of information. It is for the court to
decide, after hearing the doctor’s explanation, whether the doctor
has in fact been guilty of a breach of duty with regard to
information.
A doctor offers a patient diagnosis, advice and treatment.
The objectives, sometimes conflicting, sometimes unattainable, of
the doctor’s services are the prolongation of life, the restoration
of the patient to full physical and mental health and the
alleviation of pain. Where there are dangers that treatment may
produce results, direct or indirect, which are harmful to the
patient, those dangers must be weighed by the doctor before he
recommends the treatment. The patient is entitled to consider
and reject the recommended treatment and for that purpose to
understand the doctor’s advice and the possibility of harm resulting
from the treatment.
I do not subscribe to the theory that the patient is entitled
to know everything nor to the theory that the doctor is entitled to
decide everything. The relationship between doctor and patient is
contractual in origin, the doctor performing services in
consideration for fees payable by the patient. The doctor,
obedient to the high standards set by the medical profession
impliedly contracts to act at all times in the best interests of the
patient. No doctor in his senses would impliedly contract at the
same time to give to the patient all the information available to
the doctor as a result of the doctor’s training and experience and
as a result of the doctor’s diagnosis of the patient. An obligation
to give a patient all the information available to the doctor would
often be inconsistent with the doctor’s contractual obligation to
have regard to the patient’s best interests. Some information
might confuse, other information might alarm a particular patient.
Whenever the occasion arises for the doctor to tell the patient the
results of the doctor’s diagnosis, the possible methods of treatment
and the advantages and disadvantages of the recommended
treatment, the doctor must decide in the light of his training and
experience and in the light of his knowledge of the patient what
should be said and how it should be said. At the same time the
doctor is not entitled to make the final decision with regard to
treatment which may have disadvantages or dangers. Where the
patient’s health and future are at stake, the patient must make
the final decision. The patient is free to decide whether or not
to submit to treatment recommended by the doctor and therefore
the doctor impliedly contracts to provide information which is
adequate to enable the patient to reach a balanced judgment,
subject always to the doctor’s own obligation to say and do
nothing which the doctor is satisfied will be harmful to the
patient. When the doctor himself is considering the possibility of
a major operation the doctor is able, with his medical training,
with his knowledge of the patient’s medical history and with his
objective position to make a balanced judgment as to whether the
operation should be performed or not. If the doctor making a
balanced judgment advises the patient to submit to the operation,
the patient is entitled to reject that advice for reasons which are
rational, or irrational, or for no reason. The duty of the doctor in
– 29 –
these circumstances, subject to his overriding duty to have regard
to the best interests of the patient, is to provide the patient with
information which will enable the patient to make a balanced
judgment if the patient chooses to make a balanced judgment. A
patient may make an unbalanced judgment because he is deprived
of adequate information. A patient may also make an unbalanced
judgment if he is provided with too much information and is made
aware of possibilities which he is not capable of assessing because
of his lack of medical training, his prejudices or his personality.
Thus the provision of too much information may prejudice the
attainment of the objective of restoring the patient’s health. The
obligation of the doctor to have regard to the best interests of
the patient but at the same time to make available to the patient
sufficient information to enable the patient to reach a balanced
judgment if he chooses to do so has not altered because those
obligations have ceased or may have ceased to be contractual and
become a matter of duty or care. In order to make a balanced
judgment if he chooses to do so, the patient needs to be aware of
the general dangers and of any special dangers in each case
without exaggeration or concealment. At the end of the day, the
doctor, bearing in mind the best interests of the patient and
bearing in mind the patient’s right to information which will
enable the patient to make a balanced judgment must decide what
information should be given to the patient and in what terms that
information should be couched. The court will award damages
against the doctor if the court is satisfied that the doctor
blundered and that the patient was deprived of information which
was necessary for the purposes I have outlined. In the present
case on the judge’s findings I am satisfied that adequate
information was made available to Mrs. Sidaway and that the
appeal should therefore be dismissed.
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