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Introduction
1
Since
McNair
J.
delivered
his
direction
to
the
jury
in
Bolam
v
Friern
Hospital
Management
Committee
an
English
medical
practitioner’s
legal
duty
of
pretreatment
information
disclosure
has
been
governed
by
some
version
or
interpretation
of
2
the
‘reasonable
practitioner’
standard
he
set
forth.
Following
the
inevitable
evolution
effected
by
regular
judicial
reinterpretation,
this
standard
is
now
taken
to
require
the
disclosure
of
‘material’
or
‘serious’
risks
and
a
failure
to
do
so
constitutes
a
breach
of
duty
capable
of
sustaining
an
action
in
negligence,
if
the
other
requirements
of
that
tort
can
be
3 4
satisfied.
The
concomitant
changes
to
the
traditional
principle
of
causation
in
cases
dealing
with
risk
disclosure,
and
reformation
of
the
relevant
professional
practice
guidance
have
given
teeth,
though
certainly
not
venomous
fangs,
to
patient
autonomy.
As
shall
be
shown
however,
the
essential
position
of
the
law
has
remained
substantially
unchanged;
a
5
situation
which
has
allowed
some
commentators
to
contend
that
the
much
ballyhooed
new-‐found
respect
for
autonomy
is
little
more
than
a
veneer
on
a
system
which
remains
staunchly
pro-‐practitioner.
1
[1957]
1
WLR
582
2
Alasdair
Maclean,
Autonomy,
Informed
Consent
and
Medical
Law
(Cambridge
University
Press,
Cambridge,
2009)
190
3 nd
Shaun
Pattinson
Medical
Law
and
Ethics
(2
edition,
Sweet
&
Maxwell
Ltd.
London,
2009)
127
4
Chester
v
Afshar
[2004]
UKHL
41
5
Alasdair
Maclean,
Autonomy,
Informed
Consent
and
Medical
Law
(Cambridge
University
Press,
Cambridge,
2009)
191
6
Bolam
v
Friern
Hospital
Management
Committee
[1957]
WLR
582
at
590
7 nd
Emily
Jackson,
Medical
Law:
Text
Cases
and
Materials,
(2
edition,
Oxford
University
Press,
Oxford
2009)
182
8
ibid
183
9
464
F
2d772
(DC
Cir
1972)
10
Reibl
v
Hughes
(1980)
114
D.L.R.
(3d)
1
11
Sidaway
v
Bethlem
Royal
Hospital
Governors
[1985]
AC
871
12
Rogers
v
Whitaker
(1992)
175
C.L.R.
479
at
490
13
Smith
v
Tunbridge
Wells
Health
Authority
[1994]
5
Med
LR
334
A
Matter
of
Materiality
Like
Morland
J
before
him,
it
was
not
open
to
Lord
Woolf
to
disregard
the
judgment
of
the
majority
in
Sidaway
for
the
preferred
commonwealth
‘prudent
patient’
standard
which
placed
a
premium
on
autonomy,
but
as
in
Smith,
the
Master
14
1
of
the
Rolls,
by
his
own
extrajudicial
admission
acting
upon
academic
insight,
was
able
to
use
both
Bolam
and
Bolitho
to
restate
the
classic
test
in
a
way
which,
at
least
on
the
surface
gives
the
impression
of
adopting
the
Rogers
v
Whittaker
test,
in
English
law:
‘In
a
case
where
it
is
being
alleged
that
a
plaintiff
has
been
deprived
of
the
opportunity
to
make
a
proper
decision
as
to
what
course
he
or
she
should
take
in
relation
to
treatment,
it
seems
to
me
to
be
the
law,
as
indicated
in
the
cases
to
which
I
have
just
referred,
that
if
there
is
a
significant
risk
which
would
affect
the
judgment
of
a
reasonable
patient,
then
in
the
normal
course
it
is
the
responsibility
of
a
doctor
to
inform
the
patient
of
that
significant
risk,
if
the
information
is
needed
so
that
the
15
patient
can
determine
for
him
or
herself
as
to
what
course
he
or
she
should
adopt.’
This
formulation
according
to
Maclean’s
clear
and
logical
analysis
has
the
practitioner
acting
as
a
gatekeeper
in
determining
the
significance
of
the
risks
to
be
discloses
and
thus
undermines
the
weight
supposedly
accorded
to
patient
16
autonomy.
Fortunately
for
autonomy,
when
the
question
again
arose
before
the
court
of
appeal
four
years
later
in
Wyatt
v
Curtis
the
courts
reinforced
the
important
role
of
the
‘particular
patient’
in
the
decision
making
process
taken
before
revealing
risks:
‘Lord
Woolf's
formulation
refines
Lord
Bridge's
test
by
recognising
that
what
is
substantial
and
what
is
grave
are
questions
on
which
the
doctor's
and
the
patient's
perception
may
differ,
and
in
relation
to
which
the
doctor
must
therefore
have
regard
to
what
may
be
the
patient's
perception.
To
the
doctor,
a
chance
in
a
hundred
that
the
patient's
chickenpox
may
produce
an
abnormality
in
the
foetus
may
well
be
an
insubstantial
chance,
and
an
abnormality
may
in
any
case
not
be
grave.
To
the
patient,
a
new
risk
which
(as
I
read
the
judge's
appraisal
of
the
expert
evidence)
doubles,
or
at
least
enhances,
the
background
risk
of
a
potentially
catastrophic
abnormality
may
well
be
both
substantial
17
and
grave,
or
at
least
sufficiently
real
for
her
to
want
to
make
an
informed
decision
about
it.’
This
further
broadening
of
Lord
Woolf’s
conflation
has
been
adopted
and
further
adapted
by
the
courts.
Cranston
J
in
the
recent
case
of
Birch
v
UCL
Hospital
NHS
Trust
held
that:
‘If
patients
must
be
informed
of
significant
risks
it
is
necessary
to
spell
out
what,
in
practice,
that
encompasses.
…
Was
it
necessary
for
the
defendant
to
go
further
and
to
inform
Mrs.
Birch
of
comparative
risk,
how
this
risk
compared
with
that
associated
with
other
imaging
procedures,
in
particular
MRI?
No
authority
was
cited
to
this
effect
but
in
my
judgment
there
will
be
circumstances
where
consistently
with
Lord
Woolf
MR's
statement
of
the
law
in
Pearce
v
United
Bristol
Healthcare
NHS
Trust
the
duty
to
inform
a
patient
of
the
significant
risks
will
not
be
discharged
unless
she
is
made
aware
that
fewer,
or
no
risks,
are
associated
with
another
procedure.
In
other
words,
unless
the
patient
is
informed
of
the
comparative
risks
of
different
procedures
she
will
not
be
in
a
position
to
give
her
fully
informed
consent
to
one
procedure
rather
than
another.
…
There
was
disagreement
between
Dr.
McConachie
and
Dr.
Molyneux
as
to
whether,
on
the
facts
of
Mrs.
Birch's
case
she
should
have
been
informed
of
these
matters.
In
the
light
of
Mr.
Kitchen's
important
evidence,
I
am
convinced
that
in
Mrs.
Birch's
case
no
reasonable,
prudent
medical
practitioner
would
have
failed
to
discuss
the
respective
modalities
and
risks
with
her
along
the
lines
outlined.
In
their
absence
she
was
denied
the
opportunity
to
make
an
informed
choice.
Even
if
I
am
wrong
on
this,
the
failure
to
discuss
with
Mrs.
Birch
these
matters
could
not
be
described
in
law
as
18
reasonable,
responsible
or
logical.
An
English
medical
practitioner’s
duty
therefore
encompasses
not
only
the
disclosure
of
material
risks
of
the
proposed
treatment
but
also
to
disclose
alternatives
as
well,
surely
a
bold
step
in
strengthening
the
position
of
patient
autonomy
within
the
law.
14
Lord
Woolf
MR,
‘Are
the
Courts
Excessively
deferential
to
the
Medical
Procession?’
(2001)
9
Medical
Law
Review
1,10,
15
Pearce
v
United
Bristol
Healthcare
NHS
Trust
[1999]
P.I.Q.R.
P53
at
59
16
Alasdair
Maclean,
Autonomy,
Informed
Consent
and
Medical
Law
(Cambridge
University
Press,
Cambridge,
2009)
175
17
Sarah
Wyatt
v
Dr
Anne
Curtis,
Central
Nottinghamshire
Health
Authority
[2003]
EWCA
Civ
1779
para
16
18
Janet
Birch
v
University
College
London
Hospital
NHS
Foundation
Trust
[2008]
EWHC
2237
(QB)
para
74
and
79
A
Matter
of
Materiality
It
remained
for
the
courts
to
give
forceful
effect
to
this
right,
and
to
do
this,
once
again
an
antipodean
approach,
this
time
19 20
taken
from
Chappel
v
Hart
would
be
adopted
by
the
English
courts.
In
Chester
v
Afshar,
despite
the
powerful
and
21
2
logically
reason
dissents
of
the
two
most
senior
and
influential
Law
Lords
(surely
a
sign
that
the
decision
of
the
majority
was
both
intellectually
and
legal
tenuous)
the
majority
twisted
the
principles
of
causation
to
provided
a
remedy
for
a
‘breach
of
autonomy’;
autonomy
being
regarded
by
their
Lordships
as
a
‘serious
right’
deserving
of
greater
and
more
effective
legal
protection.
A
laudable
goal
although,
one
which
their
Lordships
felt
could
apparently
only
be
achieved
22
through
perverting
causation.
It
is
submitted
that
while
on
the
basis
of
logic
and
established
English
law
wrongly
decided,
this
bold
judgment
has
done
much
to
strengthen
not
only
the
actual
protections
afforded
autonomy,
but
the
perceived
ones
as
well.
Professional
Guidance:
A
Yellow
Card
for
Paternalism
or
Just
Back-‐Door
Bolam
Bolstering
Autonomy?
There
are
three
important
reasons
to
consider
the
role
and
effect
of
the
professional
guidance
provided
by
the
General
Medical
Council
(CMG)
and
the
Royal
College
of
Surgeons
(RCS).
Firstly,
because
it
is
to
this
guidance
which
practitioners
will
turn
to
direct
their
behavior
towards
patients.
Secondly,
because
of
the
deference
shown
by
the
courts
to
such
23
guidance
in
the
leading
case
of
W
v
Egdel
and
thirdly,
because
as
Miola
points
out,
they
must
surely
represent
a
respected
and
responsible
body
of
opinion,
which
Bolam
(still
the
test)
requires
the
reasonable
doctor
to
follow
to
avoid
24
liability
in
negligence.
Section
7
of
the
most
recent
CMC
guidance,
which
is
essentially
reproduced
verbatim
in
its
RCS
counterpart,
describes
a
cooperative
decision
making
process,
where
patients
are
engaged,
their
questions,
actively
sought
and
answered
(Lord
Diplock
no
doubt
would
posthumously
smile
at
that
physicians
must
now
willingly
submit
to
cross-‐examination).
The
guidance
tells
medical
practitioners
that
how
much
information
they
share
with
patients
will
vary,
depending
on
the
patient’s
individual
circumstances
and
that
they
must
tailor
their
discussions
with
patients
according
to
a
patient’s,
needs,
25
wishes
and
priorities
and
that
they
must
reveal
significant
risks
and
alternative
treatments.
Physicians
and
surgeons
must,
if
an
investigation
or
treatment
might
result
in
an
adverse
outcome,
even
if
such
eventualities
are
highly
unlikely,
26
inform
patients
of
this
risk.
Additionally
patients
must
be
told
about
less
serious
complications
if
they
occur
frequently.
27
All
pertinent
information
must,
according
to
the
guidance
be
presented
to
patients
in
‘a
balanced
way’.
Works
Cited
General
Medical
Counsel,
Guidance
for
Doctors,
Consent:
Patients
and
Doctors
Making
Decisions
Together
(General
Medical
Counsel,
London
2008)
nd
Emily
Jackson,
Medical
Law:
Text
Cases
and
Materials,
(2
edition,
Oxford
University
Press,
Oxford
2009)
Alasdair
Maclean,
Autonomy,
Informed
Consent
and
Medical
Law
(Cambridge
University
Press,
Cambridge,
2009)
Sheila
McLean,
Autonomy,
Consent
and
the
Law
(Routledge-‐Cavendish,
London
2010[sic])
José
Miola,
‘On
the
Materiality
of
Risk
–
Paper
Tigers
and
Panaceas’
(2009)
17
Medical
Law
Review
76-‐108
nd
Shaun
Pattinson,
Medical
Law
and
Ethics
(2
edition,
Sweet
&
Maxwell
Ltd.
London,
2009)
127
Royal
College
of
Surgeons,
Good
Surgical
Practice
(Royal
College
of
Surgeons,
London
2008)
Lord
Woolf
MR,
‘Are
the
Courts
Excessively
deferential
to
the
Medical
Procession?’
(2001)
9
Medical
Law
Review
1
30 nd
Emily
Jackson,
Medical
Law:
Text
Cases
and
Materials,
(2
edition,
Oxford
University
Press,
Oxford
2009)
191