Knowledge of risksAB by 0D23zh


									                                       Knowledge of risks
Information giving and informed consent
Richard Griffith
                                  Trespass or Negligence
 Where basis of allegation is inadequate information given on the inherent risks of the
  treatment consented to, the courts have been quick to reject a cause of action in English law
  based on trespass.
 Consent is not vitiated by a failure to inform the patient fully of the details of the possible
  adverse consequences of the proposed operation so as to render the treatment an assault
        (Chatterton v Gerson (1981)
   In such cases of alleged failure to disclose inherent risks, any action that might exist has
    been held to lie in negligence
Duty to give advice and information
 Clear law that part of a practitioner's duty of care is to give advice and information to a patient
  so that the patient understands the nature of the treatment proposed.
 The case law illustrates the difficulty in determining just how much information a patient
  should receive:
        Should the curious should be told more than the uninquisitive,
        Should there be a residual discretion to withhold or even distort information,
        Should the standard of care in disclosure cases should be different in therapeutic and non‑
         therapeutic circumstances.
                                              Early Cases
   Hatcher v Black (1954)
   Lord Denning
        'W hat should a doctor tell a patient? The surgeon has admitted that on the evening before the
         operation he told the plaintiff that there was no risk to her voice when he knew that there was some
         slight risk; but that he did it for her own good because it was of vital importance that she should not
         worry ... he told a lie; but he did it because in the circumstances it was justifiable ... But the law
         does not condemn the doctor when he only does what a wise doctor so placed would do. And none
         of the doctors called as witnesses have suggested that the surgeon was wrong. All agreed that it
         was a matter for his own judgment. If they do not condemn him, why should you.‘
                                         Standard of Care
   Standard of care implicit in Hatcher was the one adopted in Bolam v Friern Hospital
    Management Committee (1957),
   This has come to be the medical standard of care
   In disclosure cases the test is whether the quantity and quality of information
    disclosed to a patient is in accord with the practice adopted by either the profession
    as a whole or any responsible body of opinion within it.
           Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985)).
   General duty of care included disclosing as well as withholding such information as was reasonable in all
    the circumstances to place the patient in a position to make a rational choice.
   Bolam test not seen as abdicating responsibility to the medical profession.
   The practice held by the body of responsible practitioners had to be one that was rightly and properly held
   But the law will not allow the medical profession to play God.
   Doctor under a duty to disclose to the patient information relevant to the decision the patient would have to
    take, and this would include the benefits and risks but would be subject to the emotional state of the patient
    as well as the degree of risk concerned
 To prove negligence in such cases a plaintiff must show that a
  practitioner, in failing to warn, fell below the standards of practice
  regarded as proper by a competent body of professional opinion
 So a doctor is not under a duty to warn a patient of any material risk.
                          Two glosses on the Bolam test.
 Might   be circumstances where treatment involved such a substantial risk
    of grave consequences that notwithstanding the view of the responsible
    body of medical opinion, a patient should be told of the risk, as no
    prudent medical man should refrain from telling the patient of that type of

 Secondly, the position may be different if the patient specifically asked about risks:
 'No doubt if the patient in fact manifested this attitude (of wishing to be informed of any risk) by means
  of questioning, the doctor would tell him whatever it was the patient wanted to know; but we are
  concerned here with voluntary unsought information about risks of the proposed treatment...
 ‘W hen questioned specifically by a patient of apparently sound mind about risks involved in a particular
  treatment proposed, the doctor's duty must, in m y opinion, be to answer both truthfully and as fully as
  the question requires'
                     Blyth v Bloomsbury Health Authority.
   'The question of what a plaintiff should be told in answer to a general enquiry cannot
    be divorced from the Bolam test, any more than when no such enquiry is made.
   In both cases the answer must depend upon the circumstances, the nature of the
    enquiry, the nature of the information which is available, its reliability, relevance, the
    condition of the patient and so forth.

   Any medical evidence directed to what would be the proper answer in the light of responsible medical
    opinion and practice ‑ that is to say the Bolam test ‑ must in m y view equally be placed in the
    balance in cases where the patient makes some enquiry in order to decide whether the response was
    negligent or not ... Indeed I am not convinced that the Bolam test is irrelevant even in relation to the
    question of what answers are properly to be given to specific enquiries
                                 Non therapeutic setting
   Gold v Haringey Health Authority (1987).
   Judge drew a distinction between therapeutic and non‑ therapeutic settings and
    found the defendants liable.
   Court of Appeal reversed the decision of the trial judge and applied the doctrine of
    law in Sidaway to cover all aspects of the medical relationship, be this advice,
    diagnosis or treatment.
   Accordingly, advice in a contraceptive rather than a therapeutic context still fell to be
    considered within the Bolam medical standard of care.
   A failure to advise on the risk of impotence involved in an ivalon sponge rectopexy
    operation did, however, lead to a finding of negligence in Smith v Tunbridge Wells
    Health Authority
   Similarly, a failure to warn adequately on an array of risks arising out of brain surgery
    on a large arteriovascular malformation resulted in a plaintiff recovering damages for
    a left‑ sided hemiplegia
        (McAllister v Lewisham and North Southwark Health Authority).
   If it is established that a practitioner has given inadequate advice or has omitted necessary information
    to a degree that was negligent, the plaintiff must thereafter persuade the court that had proper
    information or warnings been given the plaintiff would not have submitted to the therapy.
   Smith v Barking, Havering and Brentwood Health Authority (1989)
   Failed to achieve substantial damages, as plaintiff would have been likely to have agreed to the
    operation in any event.
     Awarded £3,000 for the shock and depression upon discovering without prior warning that she had
    been rendered tetraplegic.

   Vividly illustrates the significance of the prudent practitioner test which the House of
    Lords in Sidaway has imposed on the Bolam standard of care in disclosure cases.
   Illustrates the pyrrhic nature of victory because, having cleared the hurdle of
    negligence, plaintiffs in this category of cases frequently fall at the hurdle of

   Goorkani v Tayside Health Board (1991),
        Mr Goorkani successfully established that there had been a negligent failure to warn him that a
         side effect of chlorambucil taken to prevent him from becoming progressively blind due to Behcet's
         disease could cause sterility which occurred in his case. The issue therefore became what would
         have happened had the plaintiff been properly informed of the risk of infertility:
        Awarded restricted damages of £2,500 for the shock, anger, marital frustration and cultural shame
         arising out of the sudden shock of the discovery.
                      The beginning of the end for Bolam?
   Canterbury v Spence – USA
   Reibl v Hughes - Canada
   Rogers v Whittaker – Australia
   Yacoub Case
   Royal Liverpool University Hospital Inquiry

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