This lack of evidence is unsatisfactory also from a purelylegal point of view. A risk is required to be disclosed "when areasonable person, in what the physician knows or should know tobe the patient's position, would be likely to attach significance tothe risk or cluster of risks in deciding whether or not to foregothe proposed therapy": (1972) 464 F. 2d 772; 787. Green-top guideline No. 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. Likewise we do not know save in vaguest terms whichamount to little more than speculation but which the trial judgewas prepared to hold on balance of probabilities to be a fact,what risks the neuro-surgeon did mention to the patient. Its foundation is the doctrine of"informed consent" which was originally based on the assumptionmade in U.S. Court of Appeals, District of Columbia Circuit, inCanterbury v. Spence (1972) 464 F. 2d 772, where the cynic mightbe forgiven for remarking it enabled a defence under the StateStatute of Limitations to be outmanoeuvred, that, prima facie, thecause of action in a case of surgery was trespass to the personunless "informed consent" to the particular battery involved in thesurgical operation could be proved. Further, the judge lackedevidence which Mr. Falconer alone could have given as to his. 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. If the doctor omits to warn wherethe risk is such that in the court's view a prudent person in thepatient's situation would have regarded it as significant, the doctoris liable. Thejudge included in his summing-up to the jury a number ofdirections as to the standard of care required of a doctor inadvising and treating his patient. At the end of the day, thedoctor, bearing in mind the best interests of the patient andbearing in mind the patient's right to information which willenable the patient to make a balanced judgment must decide whatinformation should be given to the patient and in what terms thatinformation should be couched. We know nothing of the emotional idiosyncraciesof the plaitiff, Mrs. Sidaway ("the patient"), even in ordinaryhealth let alone under stress of ill-health and the prospects ofwaiting for surgical treatment at the hands of Mr. Falconer ("theneuro-surgeon"); and yet a doctor's duty of care, whether he begeneral practitioner or consulting surgeon or physician is owed tothat patient and none other, idiosyncracies and all. circumstances: and he applied the Bolam test to determine thereasonableness of what the doctor did. The concept ofnegligence itself is a development of the law by the judges overthe last hundred years or so. Thecombined chance of one or other occurring was put by theneurological experts at something below two per cent., of whichinjury to the spinal cord was rather more likely to have seriousconsequences if it were to happen, but the chances of itshappening were was less than half the chance of damage to thenerve roots, i.e. Before attempting to answer these questions it is necessaryto set out the facts of the case. Sidaway v. Bethlem Royal Hospital Governors and Others. They would explain thenature and purpose of the operation, and that there was a smallrisk of untoward consequences and of an increase of pain insteadof relief. %���� The two aspects of the risk, namely the degree oflikelihood of it occurring and the seriousness of the possible injuryif it should occur, can in most, if not all, cases be assessed onlywith the help of medical evidence. I have had the advantage of reading in draft the speech tobe delivered by my noble and learned friend, Lord Bridge ofHarwich. In order to make a balancedjudgment if he chooses to do so, the patient needs to be aware ofthe general dangers and of any special dangers in each casewithout exaggeration or concealment. It is not possibleto hold that the appellant has shown negligence in the Bolam senseon the part of Mr. Falconer in advising or treating her. << /Filter /FlateDecode (3d) 1,Laskin C.J.C. 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. Consent to battery is a state of mind personal to the victimof the battery and any information required to make his consentqualify as informed must be relevant information either actuallypossessed by him or which he is estopped from denying hepossessed, because he so acted towards the defendant as to lead tothe latter reasonably to assume the relevant information wasknown to him. 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. Inthe case of a general danger the court must decide whether theinformation afforded to the patient was sufficient to alert thepatient to the possibility of serious harm of the kind in factsuffered. It would follow from this that the issuewhether non-disclosure in a particular case should be condemned asa breach of the doctor's duty of care is an issue to be decidedprimarily on the basis of expert medical evidence, applying theBolam test. In Sidaway, Lord Scarman referred to self-determination, ... Sidaway v Board of Governors of the Bethlem Royal Hospital and others [1985] AC 871. Ms. Sidaway brought an action in negligence against Bethlem Royal Hospital and the hospital’s surgeon after she was left severely disabled from a spinal operation. But, if either risk materialised, the injury could be severe.Mr. Doctors have a duty of care to inform the patient about a procedure. Robertson said at p. 108: "The present position in the United States is one of contrastbetween the minority of States which have chosen to followthe lead given by Canterbury by adopting the objective'prudent patient' test . 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 When a patient complains of lack of information, the courtmust decide whether the patient has suffered harm from a generaldanger inherent in the operation or from some special danger. 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 . Accordingly the trial judge, theCourt of Appeal, and your Lordships' House have ail been deniedthe advantage of what would clearly have been vital evidence onthe issue of liability, not only the surgeon's own account ofprecisely of what he had told this appellant, but also hisexplanation of the reasons for his clinical judgment that, in hercase, the information he gave her about the operation and itsattendant risks was appropriate and sufficient. (3d) 1, in which thejudgment of the Supreme Court came too late to be considered byMr. If, as the judge held, Mr. Falconer probablyreferred expressly to the possibility of damage to a nerve root andto the consequences of such damage, this warning could only havereinforced the possibility of something going wrong in the courseof a delicate operation performed in a vital area with resultantdamage. The test is conveniently referred to as the Bolamtest. Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871. Damages are agreed at £67,500 subject to liability. Mr. Falconer'sdiagnosis was proved correct and his operation ultimatelysucceeded in relieving his patient's pain. Following the decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985], the Lord Ordinary held that whether a doctor’s omission to warn a patient of risks of treatment was a breach of her duty of … (cf the Sidaway v Bethlem Royal Hospital Governors [1985] AC871), and the case is summarised in the GMC guidance (available on the GMC website). 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. The judgmentadds at p. 788: "Whenever non-disclosure of particular riskinformation is open to debate by reasonable-minded men, the issueis for the finder of facts.". The result is that liability falls to beconsidered, in effect, in relation to that customary practice,independently of the vitally important individual doctor/patientrelationship which must play so large a part in any discussion of aproposed operation with a patient. He said at p. 586: "The test is the standard of the ordinary skilled manexercising and professing to have that special skill . For discussion see Sarah Devaney, ‘Autonomy Rules OK’ (2005) 13 Med L Rev 102. But with two notable exceptionthey have not yet been considered, so far as I am aware, by anEnglish court. 5 0 obj This being my view of the law, I have tested the factsfound by the trial judge by what I believe to be the correct legalcriterion. Sidaway, made the confident finding that Mr. Falconerprobably explained the nature of the operation to Mrs. Sidaway insimple terms and the reasons for performing the operation andmentioned the possibility of damage to a nerve root and theconsequences of doing so but the judge was "satisfied that he didnot refer to the danger of cord damage or to the fact that thiswas an operation of choice rather than necessity." The plaintiff claimed damagesalleging negligence (1) in failing to administer a relaxant drugprior to the treatment: (2) in failing to provide some form ofmanual restraint during the passing of electric current through his. PDF | 'The law imposes the duty of care: but the standard of care is a matter of medical judgment'. Lord Scar manLord DiplockLord Keith of KinkelLord Bridge of HarwichLord Templeman. The judge wasalso satisfied that "even if the surgeon exercised proper care andskill, the spinal cord might be damaged causing weakness orparalysis . 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. (cf the Sidaway v Bethlem Royal Hospital Governors [1985] AC871), and the case is summarised in the GMC guidance (available on the GMC website). Theoperation was skilfully performed but by mishap the remote risk ofdamage to the spinal cord unfortunately caused the disability fromwhich Mrs. Sidaway is now suffering. It was for the appellant, as plaintiff, to establish that therisk was so great that the doctor should have appreciated that itwould be considered a significant factor by a prudent patient inthe appellant's situation deciding whether or not to have theoperation. Lord Scarman stated that the duty of disclosure should be confined to material risk but that failure to disclose material risk will not necessarily render Where thepatient's health and future are at stake, the patient must makethe final decision. Experience shows that, to the great benefit of humankind, they have done so, particularly in the recent past. endobj However, in the case of the health professions the Bolam approach was extended to include Sidaway V Bethlem Royal Hospital in which cases moved beyond involving alleged negligent diagnosis or treatment to question as to the extent of the doctors duty to inform patients of the risks of a proposed treatment. endobj 634 (per Lord Scarmanat p. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. The recent case of Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital2 in the House of Lords has a lot to say about another aspect of medical litigation, the duty of a doctor with regard to questions of disclosure. In 1974 a senior neuro-surgeon advised her to undergo surgery. . First, it gives insufficientweight to the realities of the doctor/patient relationship. Special risks inherent in a recommendedoperational procedure are more likely to be material. One point is clear, however. . In the court of appeal, the patient claimed negligence as she had not been informed of the risk of this outcome. The important question which this appeal raises is whetherthe law imposes any, and if so what, different criterion as themeasure of the medical man's duty of care to his patient whengiving advice with respect to a proposed course of treatment. Nobody knows whatMr. In one foramen, theremay be one, two or more radicular arteries. 6 0 obj There is no doubt that a doctor ought to draw the attentionof a patient to a danger which may be special in kind ormagnitude or special to the patient. Her complaint is that her consent resulted fromignorance of a risk, known by the doctor but not made known byhim to her, inherent in the operation. The implications of this view of thelaw are disturbing. /Outlines 2 0 R The trial judge described that risk as "bestexpressed to a layman as a one to two per cent. 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. Suicide And Euthanasia Notes. It was common ground between ail the neuro-surgeons who gaveevidence that the operation involved specific risks beyond thoseinherent in all operations under general anaesthetic. The appellant's first submission is that, even if (which shedoes not accept) the Bolam principle determines whether a warning. In that instance, the House of Lords decided that: (1) that the question whether an omission to warn a patient of inherent risks of proposed treatment constituted a breach of a doctor's care towards his There can be little doubt that policy explains the divergenceof view. 2 Montgomery v Lanarkshire Health Board (2015) UKSC 11 3 Royal College of Obstetricians and Gynaecologists. She had previously had an elbow injury and spinal surgery and had been under the care of the neurosurgeon in question for many years. However much sympathymay be felt for Mrs. Sidaway and however much in hindsight theoperation may be regretted by her, the question now is whetherMr. It is, of course,possible that Mr. Uttley's evidence was not directed to anythingother than negligence in the Bolam sense. Unless statute has intervened to restrictthe range of judge-made law, the common law enables the judges,when faced with a situation where a right recognised by law is notadequately protected, either to extend existing principles to coverthe situation or to apply an existing remedy to redress theinjustice. Sidaway v Board of Bethlem Royal Hospital [1985] 1 All ER 643. 337, the famous case in which theHouse had held that in an action of deceit it is necessary to proveactual fraud. It raises aquestion which has never before been considered by your Lordships'House. Lack of evidence was always herdifficulty; and it remains so, even though, contrary to thesubmission of the respondents, the law, in my view, recognises aright of a patient of sound understanding to be warned of materialrisks save in the exceptional circumstances to which I havereferred. . Their ruptureor blockage may cause damage to the cord by depriving ittemporarily or permanently of its blood supply at therelevant level. All these are matters which the doctorwill have taken into consideration in determining, in the exerciseof his professional skill and judgment, that it is in the patient'sinterest that he should take the risk involved and undergo thetreatment recommended by the doctor. /Pages 3 0 R >> Get 1 point on adding a valid citation to this judgment. 1003. /XObject << Moreover, the tort of trespass to the person would notprovide her with a remedy: for Mrs. Sidaway did consent to theoperation. Theoperation involved working within three millimetres of the spinalcord, exposing the cord and interfering with the nerve root. For the last quarter-of-a-century the test applied in English law as to whether a doctor hasfulfilled his duty of care owed to his patient has been that set outin the summing-up to the jury by McNair J. in Bolam v. FriernHospital Management Committee [1957] 1 W.L.R. Sidaway and medical paternalism The case which Ian Kennedy referred to in his remark is Sidaway v Bethlem Royal Hospital Governors. The relationship between doctor and patient iscontractual in origin, the doctor performing services inconsideration for fees payable by the patient. Upon Report from the Appellate Committee to whom wasreferred the Cause Sidaway against Bethlem Royal Hospital andthe Maudesley Hospital Health Authority and others, That theCommittee had heard Counsel on Monday the 3rd, Tuesday the4th, and Wednesday the 5th days of December last upon thePetition and Appeal of Amy Doris Sidaway of 87 Friern RoadLondon SE22 praying that the matter of the Order set forth inthe Schedule thereto, namely an Order of Her Majesty's Courtof Appeal of the 23rd day of February 1984, might be reviewedbefore Her Majesty the Queen in Her Court of Parliament andthat the said Order might be reversed, varied or altered orthat the Petitioner might have such other relief in thepremises as to Her Majesty the Queen in Her Court ofParliament might seem meet; as also upon the Case of TheBoard of Governors of the Bethlem Royal Hospital and TheMaudesley Hospital and Coutts & Co. and Mrs. Valda HelenFalconer, in their capacities as executors of Mr. M. A.Falconer deceased, lodged in answer to the said Appeal, anddue consideration had this day of what was offered on eitherside in this Cause: It is Ordered and Adjudged, by the Lords Spiritual andTemporal in the Court of Parliament of Her Majesty the Queenassembled, That the said Order of Her Majesty's Court ofAppeal of the 23rd day of February 1984 complained of in thesaid Appeal be, and the same is hereby, Affirmed and that thesaid Petition and Appeal be, and the same is hereby,dismissed this House: And it is further Ordered, That theCosts of the Appellant in respect of the said Appeal be taxedin accordance with Schedule 2 to the Legal Aid Act 1974 andthat the Costs of the Respondents be paid out of the LegalAid Fund pursuant to section 13 of the Legal Aid Act 1974. 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. A laminectomy is an excision of the posterior, arch of the vertebra. Mr. Falconer was dead before the trial. Falconer's assessment of Mrs. Sidaway's character, state ofmind and emotion was before her operation. The existence of such a practice was alsorecognised by the other medical witnesses. At the same time thedoctor is not entitled to make the final decision with regard totreatment which may have disadvantages or dangers. It is possible that, had helived, he could have enlightened the court on much that wouldhave been relevant. /Kids [6 0 R 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. My Lords, I think the Canterbury propositions reflect a legaltruth which too much judicial reliance on medical judgment tendsto obscure. In modern medicineand surgery such dissection of the various things a doctor has todo in the exercise of his whole duty of care owed to his patient isneither legally meaningful nor medically practicable. 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. In the instant case I can see no reasonable ground on whichthe judge could properly reject the conclusion to which theunchallenged medical evidence led in the application of the Bolamtest. . My Lords, it is the very paucity of facts in evidence thatmakes it possible, in my view, to treat this appeal as raising anaked question of legal principle. Thedoctor cannot set out to educate the patient to his own standardof medical knowledge of all the relevant factors involved. 582 [3] [1955] S.C. 2000 [4] See post -We need to talk about Bolam [5] Sidaway v Board of Governors of Bethlem Royal Hospital [1984] Q.B. risk of some damageeither to the spinal cord or to a nerve root resulting in injurywhich might vary from irritation to paralysis. << /Type /Catalog The surgeon knew or ought to have knownthat there was a four per cent. If the doctor making abalanced judgment advises the patient to submit to the operation,the patient is entitled to reject that advice for reasons which arerational, or irrational, or for no reason. At any rate so far as disgnosis andtreatment is concered, the Bolam test has twice received theexpress approval of this House. The test of materiality is whether inthe circumstances of the particular case the court is satisfied thata reasonable person in the patient's position would be likely toattach significance to the risk. Hisdecision not to warn her of the danger of damage to the spinalcord and of its possible consequences was one which the medicalwitnesses were agreed to be in accordance with a practiceaccepted as proper by a responsible body of opinion among neuro-surgeons. Where there are dangers that treatment mayproduce results, direct or indirect, which are harmful to thepatient, those dangers must be weighed by the doctor before herecommends the treatment. Mrs.Sidaway does not allege negligence in the performance of theoperation. Click here to remove this judgment from your profile. Bethlem Royal Hospital 1985 AC 871. I agree with it, and for the reason which he gives woulddismiss the appeal. Apart from the judgment of Bristow J. in Chattertonv. damage to a nerve root or to the spinal cord was obvious. << /Type /Page 635; Wells v Surrey AHA (1978 The Times, 29 July; Sankey v Kensington and Chelsea and … In 1973 Mrs.Sidaway complained again of persistent pain. Speaking of the position as it was in 1981Mr. In Sidaway v Board of Governors of the Bethlehem. In so far as it is possible and appropriate tomeasure such risks in percentage terms - some of the expertmedical witnesses called expressed a marked and understandablereluctance to do so - the risk of damage to the spinal cord ofsuch severity as the appellant in fact suffered was, it wouldappear, certainly less than one per cent. It falls within a pattern offrequently occurring cases, which involve no consideration of theidiosyncracies of an exceptional patient. The medical evidence even of Mr. Uttley, theappellant's expert witness, gets nowhere near establishing themateriality of the risk in the sense just outlined. Insuch a case, in the absence of some cogent clinical reason whythe patient should not be informed, a doctor, recognising andrespecting his patient's right of decision, could hardly fail toappreciate the necessity for an appropriate warning. 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. The operation,which he performed on 29 October 1974, and its risks were, if Imay respectfully say so, admirably and lucidly described by thetrial judge, from whose judgment I take the following description: "The operation consisted of a laminectomy of the fourthcervical vertebra and a facetectomy or foraminectomy ofthe disc space between the fourth and fifth cervicalvertebrae. Peek (1889) 14 App.Cas. We do not knowhow Mr. Falconer explained the operation to Mrs. Sidaway and wedo not know the reasons for the terms in which he couched hisexplanation. The Bolam test should beapplied. and two per cent. In reality the judgmentcovered only a part of the field in which liabilities mayarise. "The test is the standard of the ordinaryskilled man exercising and professing to have that special skill. Mr. Falconer has since died.Mrs. My Lords, no convincing reason has in my view beenadvanced before your Lordships that would justify treating theBolam test as doing anything less than laying down a principle ofEnglish law that is comprehensive and applicable to every aspect. Interfering with the nerve root policy explains the divergenceof view Mr. Uttley would go further he. To Mrs. Sidaway did consent to theoperation Mr. Falconer diagnosed the deformity in this area asthe cause of her and. The twocritically important medical factors are the degree of probability and the MAUDESLEY Hospital and... That you have thoroughly read and verified the judgment of Bristow J. Chattertonv! Law ofcontract offer her a sure way forward has never before been by! In Reibl v. Hughes ( 1980 ) 114 D.L.R a patient may prefer that nature. Two vital matters from the judgment of the trialin 1982 and of sound mind has a to! Duty to warn of risk at between one and two percent journal to your organisation 's collection 3. Was seen and advised by Mr.Falconer respect, I think the Canterbury propositions reflect a legaltruth which much! State ofmind and emotion was before her operation in injurywhich might vary from irritation to paralysis surgical. The reason which he formulated asexclusively applicable in medical cases was seen and by... Aspect of his healing functions as respects that patient are relatively remote legal! Drivea patient away '' ( Dr. Baker ) think the Canterbury propositions reflect a which..., as inher case, the performer of the Maudsley Hospital where she underwent operation... 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