In Sidaway v Board of Governors of the Bethlehem
In Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 ALL ER 1018 Dunn LJ stated in the Court of Appeal that ‘the concept of informed consent plays no part in English law’ (per Dunn LJ at 1030). Is this still an accurate reflection of the law?
In Sidaway, the plaintiff brought an action against the hospital and surgeon who performed an operation on her back. The operation she had undergone carried an inherent risk to her spinal column and nerve roots. Even if it was performed perfectly, there was still about a two per cent chance that she would suffer injury to her spinal column. As it turned out, the operation was performed correctly, but nevertheless, the plaintiff suffered injury to her spinal column. She brought an action for negligence based solely on the ground that she had not been warned of the inherent risks of the procedure and that she would not have consented to the operation had she been so informed. It was found in fact at the trial that the surgeon failed to inform the plaintiff that the operation was not necessary and was actually optional. It was also found that while she had been warned of the risk of damage to the nerve roots, she had not been warned of the less likely, but potentially more serious, risk to the spinal column. It was also accepted that had the plaintiff been aware of these facts she would not have undergone the surgery. However, the trial judge also found that the course the surgeon had taken was backed by a ‘responsible body of medical opinion’ and therefore, applying the test formulated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the standard of care that the surgeon owed the patient had been discharged. This ruling was upheld by the Court of Appeal and made its way to the House of Lords, where Dunn LJ’s quotation in the title is taken from.
The House of Lords, by applying the Bolam test, also upheld the judgment on the ground that if a responsible body of medical opinion supported a course of action, this was sufficient to discharge the duty of care owed to a patient by a doctor. However, the reasoning in the case on the issue of informed consent is very enlightening.
The first point to note is that Lord Scarman was the sole dissenting opinion in the case. Lord Scarman was of the opinion that,
‘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.’(p. 888)
Lord Scarman’s conclusion therefore was that the law ‘recognizes a right of a patient of sound understanding to be warned of material risks save in [exceptional circumstances].
This was not however the view of the other judges. Lord Bridge of Harwich for example, gave three reasons why the imposition of such a duty on patients would not be practical under English law. The first is that it would fail to take into account the reality of the doctor patient relationship in many situations. The doctor bases his decision to follow a certain course of treatment on a variety of factors and it would be impractical to expect him to educate the patient of the full implications of all of these factors. In fact, doing so may increase the trauma and stress of some patients. Secondly, the question of whether disclosure of information should have been made in any case would be best answered by reference to expert medical opinion on a case by case basis and not as a general rule applicable to all cases. Thirdly, Lord Bridge thought it would be impossible in practice for a court to apply a subjective test to the question of what was a ‘material risk’ that a patient should have been informed of, and what was an immaterial risk that would not require disclosure. This subjective test being one put forward in the American case of Canterbury v Spence (1972) 464 F. 2d 772. The statement of Dunn LJ quoted above was firmly upheld in the House of Lords.
Sidaway however, was a case decided in 1984 and 1985. Massive advancements have been made both in the standard of medical care provided by doctors, and the requirements of the law in this field, in the intervening years. Therefore, it falls to be discussed, does the principal in Sidaway still apply?
Perhaps the best starting place for such a discussion would be to follow Lord Scarman’s approach, quoted above, of looking at the right of the patient. The first right that all of us have, dating back to the early sources of the common law, is the right to bodily integrity. This right is so ingrained in our law that it can rarely be violated, even with the victim’s consent. As Swift J stated in the case of R v Donovan [1934] 2 KB 498 at 507, when it comes to violation of the principle of bodily integrity, ‘consent is immaterial.’ Furthermore, for the most part, the motive of the violator is often irrelevant and even the good intentions of a doctor will not excuse a violation of the principle. In the American case of Schloendorff v Society of New York Hospital 105 NE 92 (NY, 1914) Cardozo J put it clearly when he said that ‘a surgeon who performs an operation without the patient’s consent commits an assault,’ This position has been affirmed in England in A-G’s Reference (No 6 of 1980) [1981] QB 715 where it was clearly asserted that it is the patient’s consent alone, and not the good motives of the doctor or any other public interest that make a doctor’s interference with the patient lawful.
However, absolute as the twin principles of bodily integrity and patient consent appear, there are a number of exceptions in practice. The law distinguishes involuntary treatment, that is treatment that the patient does not consent to, from non-voluntary treatment, that is treatment that the patient is unable to consent to because he is for example unconscious or otherwise unable to provide valid consent. One justification for non-voluntary treatment is that the patient is presumed to consent, as it is highly likely that he would have done so had he been conscious. This approach however, does not have universal academic support (Mitchell, 1995). The more favoured justification comes from the law of necessity, which recognizes the need to act in an emergency, despite the fact that the necessary consent has not been obtained (Skegg, 1974). The requirements for this exception to apply are that the patient is unable to consent, that there is no one capable of consenting on his behalf, that there is genuine urgency and that there are no known objections to treatment from the patient (In re Boyd, 403 A2d 744 (DC 1979)). The basic approach has been summed up succinctly by Lord Devlin (1962: p. 90) where he said ‘The Good Samaritan is a character unesteemed in English law.’ The principle has been developed further by the Canadian Supreme Court which has developed a distinction between procedures which are necessary and procedures which are convenient. While a doctor may be justified in performing a necessary procedure without consent, to perform a merely convenient one would be beyond what he is authorized to do.
Two colourful Canadian cases illustrate the distinction well. The first, Marhsall v Curry [1933] 3 DLR 260, concerns a case where a doctor removed a testicle during the course of a hernia operation. While the patient was naturally dismayed to wake up to the discovery, the court held that the doctor had been justified in acting as he had because of the nature of the patient’s condition and the fact that the operation could not have been regarded as successful but for the doctor’s decision. This case is contrasted with that of Murray v McMurchy [1949] 2 DLR 442 in which the doctor tied a defective fallopian tube during the course of a caesarian section. This was held to have been convenient as the woman would have been at risk, had she undergone another pregnancy, and a separate operation to tie the tube could be avoided by performing the procedure now. However, the court found that the operation was not necessary in the legal sense and therefore a breach of the patient’s right. The relevance of these cases to English law was affirmed by the Court of Appeal in Devi v West Midland Regional Health Authority [1981] CA 491 which followed the Canadian courts reasoning.
It should also be clearly noted that the consent of the patient, and the principle of patient autonomy takes precedence over any arguments of medical paternalism. This fact was stated in the two highly publicized and controversial cases of Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 and Airedale NHS Trust v Bland [1993] 1 All ER 821.
Also, where a doctor acts without any consent at all, law sees this situation as appropriate for a charge of battery. This will be the case where a doctor proceeds to act on a patient, despite the fact that the patient has expressly refused the treatment (Molloy v Hop Sang [1935] 1 WWR 714). It is also the case where the doctor proceeds to provide a patient with treatment that is materially different from the treatment that the patient consented to. This was the case in Schweizer v Central Hospital (1974) 53 DLR (3D) 494 where a patient consented to a toe operation, and the surgeon subsequently operated on the patient’s back.
This is therefore. The starting position that led Lord Scarman to dissent from his colleagues in the Sidaway judgment. It is clear that the principle of bodily integrity is given the highest level of respect and protection under English law. Lord Scarman was saying that in order for a patient to exercise and enforce this right, he had to be informed of the details, risks and nature of a medical procedure. Further to this, Lord Scarman also was of the opinion that if a patient gave his consent without being properly informed of the risks and nature of the procedure he was consenting to, then this consent was in an important sense defective. This is the nature of the principle of informed consent, and requires that in order for a patient’s consent to be effective, and in order for a doctor to be able to properly act on it, the patient must have understood what he was consenting to.
Sidaway was clearly a decision that rejected the concept of informed consent. This was recognized in Canada where the courts expressly refused to follow the decision and instead opted for upholding the informed consent requirement. One example of many is that of Haughian v Paine [1987] 4 WWR 97 in which the Saskatchewan Court of Appeal decided not to follow Sidaway and instead ruled that a doctor had been negligent in performing an operation for which the patient had not been told the consequences of undergoing no treatment at all. This case followed quickly on the heals of Sidaway.
However, as late as 1997, academics in England were still confidently asserting that “English law does not recognize the doctrine of informed consent” (Grundy, 1997: p. 211). However, by this time, the attention had shifted to another principle in English law that was providing patient’s with a choice. This principle can also be traced to the Sidaway decision, the very case that rejected the application of informed consent in England. In his dissenting judgment, Lord Scarman said (at p. 884),
‘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 recognized by the law is not adequately protected, either to extend existing principles to cover the situation or to apply an existing remedy to redress the injustice.’
It is this principle of the law that has been leading to significant inroads being created into the Bolam test in the context of the information given to a patient to enable him or her to make a decision. The view of Lord Bridge that it would be impractical to expect the doctor to explain absolutely everything to the patient, has in fact been flipped on its head, and the prevailing sentiment now seems to be that it would be unreasonable for the patient to explain the entire circumstances of his life, medical, social, economic and otherwise, that would be necessary to make a truly informed decision and that therefore, it is the patient who is in a far better position to make the best decision based on the information available.
Even in Sidaway a pure Bolam approach was being compromised. Both Lord Bridge and Lord Keith were of the opinion 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 question requires’ (per Lord Bridge at 898).
If one was to think about this statement in practice, it is in fact a lot more significant a compromise than it may seem. In reality, it is extremely likely that the vast majority of patients would ask their doctor a large number of questions concerning the risks and relative benefits of different courses. It would be a rare patient these days who would see a doctor, hear of a course of recommended treatment, and then accept it unquestioningly. The easy availability of medical information, and access to education and awareness of relevant issues has been promoted in the last couple of decades to the standard where patients are likely to be highly informed on their conditions and the options available to them, and they will certainly expect to engage in a frank discussion with their doctor on the courses of treatment available. It could almost be assumed, that in cases where a patient did not ask about the risks of a procedure of his doctor, either he had sufficient knowledge and consented to the doctor’s approach, or abrogated his right to further information in favour of accepting the doctor’s assessment.
The second inroad contained in Sidaway itself was asserted by Lords Bridge, Templeman and Keith to the effect that (per Lord Bridge at 900),
‘Even in a case where, as here, no expert witness in the relevant medical field contends the non-disclosure as being in conflict with accepted and responsible medical practice, I am of the 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.’
Combined with the previously mentioned inroad, the two conditions together provide significant safeguards to the patient’s right to meaningfully consent. Even if the patient fails to touch on serious issues and risks in his own research, or conversation with the doctor, the doctor is also under an obligation to raise of his own initiative, particular risk that are obviously necessary for ‘an informed choice on the part of the patient.’ Without actually using the phrase, the standard that the court was setting out in Sidaway was in fact starting to sound quite close to the concept of informed consent, at least for the vast majority of cases, in practice.
As identified by Gurndy (1997: p. 213) the approach adopted in Sidaway is in fact a limited form of informed consent, ‘for it acknowledges that:
a patient’s right of decision should be recognized and respected;
where the patient undergoes an operation involving a substantial risk of grave adverse consequences a doctor failing to disclose such risk would be negligent save for circumstances where there was some cogent clinical reason why the patient should not be informed.’
Since Sidaway therefore, there have been a number of cases highlighting the importance of the patient’s right to know, and putting the Bolam test into a subsidiary role as merely one of a number of factors that should be taken into account. In Blyth v Bloomsbury Health Authority [1993] 4 Med LR 151 (per Kerr LJ at 157) it was said,
‘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.’
Without creating an express right to all information that is available, the court was saying that Bolam is just one of the factors that are relevant in questions of this type. In Smith v Turnbirdge Wells Health Authority [1994] 5 Med LR 334 (per Mr. Justice Morland at 399) the court went against Bolam when it said,
‘By 1988 although some surgeons may still not have been warning patients similar in situation to the plaintiff of the risk of impotence, that omission was neither reasonable nor responsible.’
Therefore, despite passing the Bolam test, the defendants failed on the grounds of a reasonable and responsible test. In Moyes v Lothian Health Board [1990] 1 Med LR 463 the court found that the overarching test was ‘whether the doctor has shown reasonable care for the safety of his patient.’ In Abbas v Kenney [1996] 7 Med LR 47 the court stated that
‘A doctor has a duty to explain what he intends to do and the implications of what he is going to do. It must be explained in such a way that the patient can understand.’
Therefore, to conclude, it is possible to say that while the courts purport to be applying the Bolam test, as set out in Sidaway, the fact of the matter is that they are actually operating on principles much closer to a practical understanding of a modified form of informed consent. There are numerous cases that show that the mere fact that a body of professional opinion would not have disclosed certain information will not be enough for a doctor to avoid a finding of negligence. At the same time, there are numerous judicial statements to the effect that doctors must inform their patients of the basic information necessary in order for them to exercise their right to consent. Therefore, while in theory there is no doctrine of informed consent in English law, the practical approach, stemming from Sidaway and subsequent practice, is that a modified doctrine of informed consent does prevail in English law, and any doctors who ignored this fact would be standing on very shaky legal ground.
Reference List
Texts and Articles
Beauchamp & Childress, Principles of Biomedical Ethics, 3rd ed. 1990, Cambridge
Buchanan & Brock, Deciding for Others, 1989, London
Campbell, Moral Dilemmas in Medicine, 3rd ed. 1984, Oxford University Press
Castiglioni, A history of Medicine, trans and ed E B Krunghaar, 2nd ed. 1947
Fulford, Moral Theory and Medical Practice, 1989, Oxford
Grundy, P., Bolam, Sidaway and the Unrecognised Doctrine of Informed Consent: A Fresh Approach, (1997) JPIL, Dec. 211
Lord Devlin, Samples in Law Making, (1962) Oxford University Press, Oxford
Mason & McCall Smith, Law and Medical Ethics, 4th ed. 1994, Butterowrths, London
Mitchell, J., A Fundamental Problem of Consent (1995) 310 BMJ 43
Skegg, A., A Justification for Medical Procedures Performed without Consent, (19740 90 LQR 512
Cases
Abbas v Kenney [1996] 7 Med LR 47
A-G’s Reference (No 6 of 1980) [1981] QB 715
Airedale NHS Trust v Bland [1993] 1 All ER 821
Blyth v Bloomsbury Health Authority [1993] 4 Med LR 151
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Canterbury v Spence (1972) 464 F. 2d 772
Devi v West Midland Regional Health Authority [1981] CA 491
Haughian v Paine [1987] 4 WWR 97
In re Boyd, 403 A2d 744 (DC 1979)
Marhsall v Curry [1933] 3 DLR 260
Molloy v Hop Sang [1935] 1 WWR 714
Moyes v Lothian Health Board [1990] 1 Med LR 463
Murray v McMurchy [1949] 2 DLR 442
R v Donovan [1934] 2 KB 498
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649
Schloendorff v Society of New York Hospital 105 NE 92 (NY, 1914)
Schweizer v Central Hospital (1974) 53 DLR (3D) 494
Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 ALL ER 1018
Smith v Turnbirdge Wells Health Authority [1994] 5 Med LR 334
