Butthey do not say that where a different sort of relationshipought to be inferred from the circumstances the case is tobe concluded by asking whether an action for deceit will lie.I think that the authorities subsequent to the decision of theHouse of Lords shew a tendency to assume that it wasintended to mean more than it did. There is no challenge to the judge's findings: (1) that Mr.Falconer's diagnosis was correct; and (2) that his recommendationin favour of operative treatment was one which he couldreasonably and properly have made to his patient; and (3) that heperformed the operation with due care and skill. "The test is the standard of the ordinaryskilled man exercising and professing to have that special skill. majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. Sinceneither his advice nor his treatment could be faulted on the Bolamtest, his patient may have been deprived of the opportunity toexercise her right of decision in the light of information whichshe, had she received it, might reasonably have considered to beof importance in making up her mind. %���� Mr. Falconer lacked neither care for his patient'shealth and well-being nor professional skill in the advice andtreatment which he offered. Mr. Falconer saw herin the early months of 1974. I conclude, therefore, that there is room in our law for alegal duty to warn a patient of the risks inherent in the treatmentproposed, and that, if such a duty be held to exist, its properplace is as an aspect of the duty of care owed by the doctor tohis patient. This being the state of the evidence, the question for theHouse is whether the omission by Mr. Falconer to warn his patientof the risk inherent in the operation of damage to the spinal cordwith the possible result of a partial paralysis was a breach of dutyowed by him to his patient. Mrs.Sidaway's condition was reviewed annually until 1970 and in 1973Mr. 582, at p. 586, approvedby this House in Whitehouse v. Jordan [1981] 1 WLR 246 (perLord Edmund-Davies at p. 258) and in Maynard v. West MidlandRegional Health Authority [1984] 1 W.L.R. An obligationto give a patient all the information available to the doctor wouldoften be inconsistent with the doctor's contractual obligation tohave regard to the patient's best interests. >> /Count 2 Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. 1 0 obj For discussion see Sarah Devaney, ‘Autonomy Rules OK’ (2005) 13 Med L Rev 102. /Contents 7 0 R covered both nerve root and spinal cord damage and covereda spectrum of possible ill effects "ranging from the mild to thecatastrophic." SkinnerJ. Or is it specific to theparticular operation under consideration? /Kids [6 0 R Randomly placed in the foramina, runningalongside the nerves, are small blood vessels known as theradicular arteries. 1 Chatterton v Gerson [1980] 3 W.L.R. My Lords, I think the Canterbury propositions reflect a legaltruth which too much judicial reliance on medical judgment tendsto obscure. On both the test and the defencemedical evidence will, of course, be of great importance. In my view the question whetheror not the omission to warn constitutes a breach of the doctor'sduty of care towards his patient is to be determined notexclusively by reference to the current state of responsible and. He also concluded that, even if Mrs Montgomery had been given advice about the risk of serious harm to her baby as a consequence of shoulder dystocia, it would have made no difference in L.R. majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. The author deals so comprehensively with theAmerican, Canadian, and other countries' case law that I find itunnecessary to refer to any of the cases to which our attentionhas been drawn, interesting and instructive though they are, otherthan Canterbury v. Spence and a case in the Supreme Court ofCanada, Reibl v. Hughes (1980) 114 D.L.R. Hemay take the view, certainly with some patients, that the veryfact of his volunteering, without being asked, information of someremote risk involved in the treatment proposed, even though hedescribes it as remote, may lead to that risk assuming an unduesignificance in the patient's calculations. Nor would the law ofcontract offer her a sure way forward. Buteven in a case where, as here, no expert witness in the relevantmedical field condemns the non-disclosure as being in conflict withaccepted and responsible medical practice, I am of opinion thatthe judge might in certain circumstances come to the conclusionthat disclosure of a particular risk was so obviously necessary toan informed choice on the part of the patient that no reasonablyprudent medical man would fail to make it. The appellant patient Mrs. Sidaway claims £67,500 damagesagainst the estate of the deceased neuro-surgeon Mr. Murray A.Falconer for his failure to warn her of the risk that the operationwhich he recommended and performed with the consent of Mrs.Sidaway might cause the damage to her spinal cord which in factoccurred and the disability from which she is now suffering. For discussion see Sarah Devaney, ‘Autonomy Rules OK’ (2005) 13 Med L Rev 102. with a neuro-surgeon whose practice, in the absence of specificquestioning, was to mention to patients to whom he recommendedsuch an operation for relief of pain as he was proposing toundertake on the patient in the instant case the risk of damage tothe nerve roots with deleterious effect of varying degrees ofdiscomfort or more serious disability, if the one in fifty chanceoccurred and despite the utmost operating skill something wentwrong. The "prudent patient" cannot, however,always provide the answer for the obvious reason that he is a. norm (like the man on the Clapham omnibus), not a real person:and certainly not the patient himself. The true test forestablishing negligence in diagnosis or treatment on the partof a doctor is whether he has been proved to be guilty ofsuch failure as no doctor of ordinary skill would be guilty ofif acting with ordinary care . /Creator (R and OS php pdf writer, http://www.ros.co.nz) 3 0 obj It falls within a pattern offrequently occurring cases, which involve no consideration of theidiosyncracies of an exceptional patient. 5 0 obj It is for the court todecide, after hearing the doctor's explanation, whether the doctorhas in fact been guilty of a breach of duty with regard toinformation. But thecourt affirms at p. 792: "Experts are unnecessary to a showing ofthe materiality of a risk to a patient's decision on treatment, orto the reasonably, expectable effect of risk disclosure on thedecision." But is it right that medical judgment should determinewhether there exists a duty to warn of risk and its scope? 787 that "the issue on non-disclosure must be approached fromthe viewpoint of the reasonableness of the physician's divulgence interms of what he knows or should know to be the patient'sinformational needs." Known as the "doctrine of informedconsent," it amounts to this: where there is a "real" or a"material" risk inherent in the proposed operation (howevercompetently and skilfully performed) the question whether and towhat extent a patient should be warned before he gives hisconsent is to be answered not by reference to medical practicebut by accepting as a matter of law that, subject to all properexceptions (of which the court, not the profession, is the judge), apatient has a right to be informed of the risks inherent in thetreatment which is proposed. In the field of neuro-surgery it would benecessary to substitute for Lord President Clyde's phrase "nodoctor of ordinary skill," the phrase "no neuro-surgeon of ordinaryskill." Creator Unknown author. There is no evidence in the instant case that the patientasked the neuro-surgeon a single question about whether therewere any risks involved in undergoing the operation that he wasproposing for her, or if there were, what were the consequences ofthose risks or the chances of their occurring. The case against a simpleapplication 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. 3. Bedford Pierce (310 words) exact match in snippet view article find links to article of Physicians. . expressed broad approval of the doctrine asenunciated in Canterbury v. Spence, though it would seem thatapproval of the doctrine was not necessary to a decision in thecase. The relationship between doctor and patient iscontractual in origin, the doctor performing services inconsideration for fees payable by the patient. that everyhuman being of adult years and of sound mind has a right todetermine what shall be done with his own body. If the law recognises the right andthe obligation, is it a right to full disclosure or has the doctor adiscretion as to the nature and extent of his disclosure? /Font << Treatment failed to relievepain. Sidaway v. Bethlem Royal Hospital All Engl Law Rep. 1984 Feb 23;[1984] 1:1018-36. Whatyour Lordships have been asked to do - and it is within yourpower to do so - is to substitute a new and different rule for thatpart only of the well established Bolam test as comprises adoctor's duty to advise and warn the patient of risks of somethinggoing wrong in the surgical or other treatment that he isrecommending. Her pain in the meantime hadgot progressively worse. 641 Hirst J. followed Skinner J. in thiscase, adding a comment with which I respectfully agree, that itwould be deplorable to base the law in medical cases of this kindon the torts of assault and battery. What we do know, however, and this is in my viewdeterminative of this appeal, is that all the expert witnessesspecialising in neurology (including the patient's own expertwitness, Mr. Uttley who would not himself have undertaken asimilar operation without waiting a period of time, after October1974, to see what developed as to the persistence of the patient'spain) agreed that there was a responsible body of medical opinionwhich would have undertaken the operation at the time the neuro-surgeon did and would have warned the patient of the risk involvedin the operation in substantially the same terms as the trial judgefound on the balance of probabilities the neuro-surgeon had done,i.e. Sidaway v Board of Governors of the Bethlem Royal Hospital & The Maudsley Hospital HL 1985 Facts: Claimant suffered from recurrent pain in her neck, right shoulder and arms. been referred, in any jurisdiction. There is, in truth,no evidence to answer these questions. 2d783. Even if the risk be material, thedoctor will not be liable if upon a reasonable assessment of hispatient's condition he takes the view that a warning would bedetrimental to his patient's health. I fully appreciate the force of this reasoning, but can only acceptit subject to the important qualification that a decision whatdegree of disclosure of risks is best calculated to assist aparticular patient to make a rational choice as to whether or notto undergo a particular treatment must primarily be a matter ofclinical judgement. Their ruptureor blockage may cause damage to the cord by depriving ittemporarily or permanently of its blood supply at therelevant level. . I find itsignificant that no common law jurisdiction either American orCanadian which has espoused the doctrine of "informed consent"appears to have suggested that the surgeon was under a duty towarn his patient of such general risks which, rare though they maybe, do happen and they are real risks. . Part 1 The Bolitho exception The leading case on informed consent to medical treatment is Sidaway v. In that case the House of Lords held that the Bolam test was the appropriate test in deciding the appropriate standard of care in respect of a doctor's duty of disclosure of the risks of medical treatment. Falconer, went into hospital on 11 October, and was operatedupon by Mr. Falconer on 29 October. * Enter a valid Journal (must The appellant's second submission is that she has a cause ofaction which is independent of negligence in the Bolam sense. Lord Scar manLord DiplockLord Keith of KinkelLord Bridge of HarwichLord Templeman. /CreationDate (D:20201218) On 17October, she underwent a myelogram which revealed a partialblock at the level of the C4/5 disc space, a posterior ridge in thesame area which appeared to have, at least in part, a bonystructure, and a narrowing of the subarachnoid space in the samearea. ", This remains the approach of the judges to new or as yetunconsidered situations. Get 1 point on adding a valid citation to this judgment. assessment of his patient with especial reference to his view as towhat would be the effect upon her of a warning of the existenceof a risk, albeit slight, of serious personal injury arising from theoperation however skilfully and competently it was performed.Such being the limitations upon the availability of criticallyimportant evidence, I confess that I find it surprising that the trialjudge felt able to reach the detailed findings as to the extent ofthe warning given which are a striking feature of his judgement.There is, however, no appeal against his findings; and I have nodoubt that your Lordships' House must proceed upon the basis ofthe facts as found. Shoulder dystocia. In my judgment the merit of the propositions enunciated inCanterbury v. Spence (1972) 464 F. 2d 772 is that withoutexcluding medical evidence they set a standard and formulate atest of the doctor's duty the effect of which is that the courtdetermines the scope of the duty and decides whether the doctorhas acted in breach of his duty. Statistically, the chances of any risk of theproposed treatment going awry at all may be small – but. As a result of the ECT treatment, Bolam suffered several fractures to his pelvis. The prolification of medical malpractice suits in theU.S.A. This general duty is not subject to dissectioninto a number of component parts to which different criteria ofwhat satisfy the duty of care apply, such as diagnosis, treatment,advice (including warning of any risks of something going wronghowever skilfully the treatment advised is carried out.) /XObject << Is this still an accurate reflection of the law? In Canterbury v. Spence the court enunciated fourpropositions: (1) the root premise is the concept . The judge was thusdriven to base the finding to which I have earlier referred in parton inference from documents, but mainly on the evidence of otherdoctors as to what they knew of the deceased surgeon's customarypractice when discussing with patients an operation of the kind theappellant was to undergo. 1003. In July 1960, she was referred to the Maudsley Hospitalwhere Mr. Falconer discovered that the second and third cervicalvertebrae were congenitally fused and that there was a significantnarrowing of the spinal column between the fifth and sixthvertebrae. Itis clearly right to recognise that a conscious adult patient ofsound mind is entitled to decide for himself whether or not he willsubmit 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 "informedconsent" which has led in certain American jurisdictions todecisions, and in the Supreme Court of Canada, to dicta, on whichthe appellant relies, which would oust the Bolam test andsubstitute an "objective" test of a doctor's duty to advise thepatient of the advantages and disadvantages of undergoing thetreatment proposed and more particularly to advise the patient ofthe risks involved. The state of the evidence in this case compels me to theconclusion that the appellant has not made out a case ofnegligence against her surgeon, the late Mr. Murray A. Falconer.I regret profoundly that after a trial in the course of which thejudge listened with great care to a substantial and complex volumeof medical evidence and delivered a meticulous and detailedjudgment, and after two appellate hearings (by the Court ofAppeal and your Lordships' House), the conclusion should be thatthe plaintiff has failed to prove her case. He said: "on the evidence . << /Type /Outlines /Count 0 >> In McNair, J’s address to t… The appellant denied that she had seen the surgeon at allbefore the operation was performed. apartial paralysis. Is this still an accurate reflection of the law? Creator Unknown author. I cannot believe that contemporary medical opinion wouldsupport this view, which would effectively exclude the patient'sright to decide in the very type of case where it is mostimportant that he should be in a position to exercise that rightand, perhaps even more significantly, to seek a second opinion asto whether he should submit himself to the significant risk whichhas been drawn to his attention. At any rate so far as disgnosis andtreatment is concered, the Bolam test has twice received theexpress approval of this House. In reality the judgmentcovered only a part of the field in which liabilities mayarise. The twocritically important medical factors are the degree of probabilityof the risk materialising and the seriousness of possible injury, ifit does. They all treated the question as one formedical judgment. Lord Haldane had this to say at [1914] A.C. 932;947: "My Lords, the discussion of the case by the noble andlearned Lords who took part in the decision appears to meto exclude the hypothesis that they considered any otherquestion to be before them than what was the necessaryfoundation of an ordinary action for deceit. Sidaway vs Bethlem Royal Hospital Governors 1985 2 - a case where a patient was left with paralysis after an operation to relieve a trapped nerve. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. Damages have been agreed, subject to liability, in thesum of £67,500. The issue underconsideration is a different issue from that involved wherethe question is whether the doctor carried out hisprofessional activities by applicable professional standards.What is under consideration here is the patient's right toknow what risks are involved in undergoing or foregoingcertain surgery or other treatment.". damage to a nerve root or to the spinal cord was obvious. particularly if surgery is involved (though this is by no meansconfined to surgery) it is never totally absent and the degree ofpossible worsening involved may cover a whole spectrum ofdisabilities from mild occasional discomfort to what might justifythe epithet catastrophic. The common law is adaptable: it would not otherwisehave survived over the centuries of its existence. The trial judge described that risk as "bestexpressed to a layman as a one to two per cent. The patient ought to have been informed of thesespecific risks in order to be able to form a balanced judgment indeciding whether or not to submit to the operation. The relevant form of action has been based innegligence, i.e. and the majority of States whichhave been content to adopt the traditional test anddetermine the question of disclosure of risks by applying the'reasonable doctor' test.". .it issufficient if he exercises the ordinary skill of an ordinarycompetent man exercising that particular art.". Conservative treatment, including collar, traction andmanipulation failed to effect a cure. 634 (per Lord Scarmanat p. The doctor's dutyarises from his patient's rights. 582, where it was treated as one to be answeredwithin the context of the duty of care and skill owed by a doctorto his patient. A verywide variety of factors must enter into a doctor's clinicaljudgment not only as to what treatment is appropriate for aparticular patient, but also as to how best to communicate to thepatient the significant factors necessary to enable the patient tomake an informed decision whether to undergo the treatment. /Resources << She replied, complaining of very persistent pain "inthe right arm and shoulder," which was the same area as before,and now also of pain in the left forearm. Falconer's assessment of Mrs. Sidaway's character, state ofmind and emotion was before her operation. It will also have a bearing on their materialitybut this is not a question that is to be concluded on thebasis of the expert medical evidence alone. x��Xێ��}���60j�~��d{ �D�qzȞ�֒�q7��ɓ~#@�[�)��TU��ME0$`wy�>]u��i>��YE2�"���X&�k��u"�M���7���>�ӳ��׻y-�*�����Dĕ���N���lZuRg�(�wz. PDF | 'The law imposes the duty of care: but the standard of care is a matter of medical judgment'. Thedoctor himself will normally be an essential witness: and thereasonableness of his assessment may well need the support ofindependent medical testimony. In Sidaway v Bethlem Royal Hospital Governors [2] the Bolam test was applied to the duty of disclosure. The facts giving rise to this appeal have been fullyrecounted by my noble and learned friend, Lord Scarman. Thesubmission is based on her right to decide for herself whether sheshould submit to the operation proposed. In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [2] Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. The same criteria were applied to boththese aspects of the surgeon's duty of care. ] So there areeliminated from our consideration matters of clinical judgment ofthe neuro-surgeon as to how to conduct a bilateral discussion withthe patient in terms best calculated not to scare her off fromundergoing an operation which, in the exercise of the paramountduty of care he owed to her individually to exercise his skill andjudgment in endeavouring to heal her, he is satisfied that it is inher interests to undergo despite such risks as may be entailed. It is a case of cervical cord decompression surgery leading to paraplegia and the … In Sidaway v Board of Governors of the Bethlehem. The juristic basis of the proposed substitution whichoriginates in certain state court jurisdictions of the United Statesof America and has found some favour in modified form by theSupreme Court of Canada, appears to me, with great respect, tobe contrary to English law. Further, the judge lackedevidence which Mr. Falconer alone could have given as to his. Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. Such facts as emerged in evidence at the trial of the actionthat is the subject of this appeal have been set out by my nobleand learned friend, Lord Scarman. Potter [1984] 1 W.L.R. Basing himself on evidence of the usual practice of Mr.Falconer and apparently assuming that Mr. Falconer's explanationto every patient followed the same practice, the trial judge,without the benefit of any direct evidence from Mr. Falconer orMrs. She had previously had an elbow injury and spinal surgery and had been under the care of the neurosurgeon in question for many years. We are dealing in the present appeal with a patient who hasexpressed to the neuro-surgeon no anxiety about any risks of theproposed operation going wrong; and we are likewise confronted. Further, we do not know Mr.Falconer's assessment of his patient. London: RCOG; 2012. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. The medical witnesses were agreed that they would give apatient some warning of the specific risks involved beforeperforming an operation of this kind. Theyhave seen it as arising from the patient's right to know ofmaterial risks, which itself is seen to arise from the patient'sright to decide for himself whether or not to submit to themedical treatment proposed. From a period long beforeAmerican independence this, as I have pointed out, has never beenso in English law. She had previously had an elbow injury and spinal surgery and had been under the care of the neurosurgeon in question for many years. 75. But the circumstance that this House isnow called upon to explore new ground is no reason why a rule ofinformed consent should not be recognised and developed by ourcourts. a heart orlung or blood condition. BETHLEM ROYAL HOSPITAL AND THE MAUDESLEY HOSPITAL HEALTHAUTHORITY AND OTHERS (RESPONDENTS). They said that: Mr. Falconer was dead before the trial. Theobligation of the doctor to have regard to the best interests ofthe patient but at the same time to make available to the patientsufficient information to enable the patient to reach a balancedjudgment if he chooses to do so has not altered because thoseobligations have ceased or may have ceased to be contractual andbecome a matter of duty or care. Doctors have a duty of care to inform the patient about a procedure. Sidaway v Bethlem Royal Hospital and the Maudesley Hospital Health Authority and Others [1985] AC 871. I do not subscribe to the theory that the patient is entitledto know everything nor to the theory that the doctor is entitled todecide everything. 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