#1726 - Non Dislosure Of Risks - Medical Law

1.(b) Non-Consent: Actions in negligence based on a failure to provide enough information

Cases of consent vitiated through misrepresentation

• 1. Where information misrepresented for the purposes of fraud (dentist carrying out unnecessary procedures for financial gain)

• 2. Where consent is induced through misrepresentation of the nature of the proposed act/treatment

  • R v Flattery [1877]: X said to Y – I have a good medical procedure for you. Y said, yep okay. X had sex with her

    • Held

      • Consent vitiated by fact that nature of act was a deception.

  • Or where its induced by misrepresentation about the nature of the patient’s present condition

• 3. Where the act itself is explained fully and consented to but there is deception as to the reasons behind it?

  • R v Tabaussum: T claimed he was doing breast cancer research and persuaded two women to take off their tops for him to examine and touch their breasts. He turned out to be doing no such thing

    • Held criminally liable

• 4. Where D misrepresents his qualifications or attributes?

  • R v Richardson: R was a dentist who had been removed from the list of the Dental Register, but continued to give treatment. Patients did not know she had been struck off.

    • Held

      • Patients not deceived as to the identity of the person or the nature/purpose of the treatment

        • They were deceived only as to her attributes and qualifications

        • Therefore not a misrepresentation which negatives consent.

  • Herring: Odd decision, person likely to be far more concerned about whether a doctor has the necessary qualifications, not who they are.

How much information must be provided for consent to be valid?

• There is no doctrine of informed consent

  • Sidaway v Bethlem RHG [1985]: During an operation to relieve a trapped nerve, Mrs S’s spinal cord was damaged, leaving her paralysed. Mrs S based her claim not on negligence in carrying out the operation, but through a lack of the surgeon telling Mrs S of the risks of paralysis that the operation carried. Experts said some, but not all, neurosurgeons would have regarded it as acceptable not to tell of the risk of paralysis.

    • Lord Diplock:

      • A medical professional can’t be acting negligently if they were acting in accordance with a respected body of medical opinion

        • Doctor only liable if non-disclosure would be unacceptable to all responsible doctors

    • Lord Bridge:

      • Two extreme positions

        • Either doctor has to tell patient of ALL the risks, remote, serious or otherwise unless clinical reason not to do so

        • OR doctor must decide treatment and decide, in the patient’s best interest, that there is no need to tell the patient any of the risks if it will scare them.

      • Clearly neither position suffices

        • So should go for a general position without ousting Bolam principle.

        • Bolam should remain in force

          • But subject to the proviso that patients must be informed of any material and serious risks (e.g. 10% risk of stroke)

            • Even if respectable body of medical opinion holds otherwise.

    • Lord Templeman

      • The views of professional bodies of opinion are irrelevant

        • The doctor is under a duty to inform patients as to the nature of the operation and any risks were special to the patient

        • The explanation here is clear that may be risks to the spine

          • Mrs S didn’t ask for details, so doctor not under duty to give it

          • Giving too much information may impair making considered decision as much as too little.

    • Lord Scarman:

      • The doctor's duty should be one

        • which requires him not only to advise as to medical treatment

        • but also to provide his patient with the information needed to enable the patient to consider and balance the medical advantages and risks alongside other relevant matters

          • however, he should only need to advise on material risks

      • If a prudent patient would consider the information significant, the patient had a right to know it

        • but while a person might be entitled to know a risk, doctors could withhold telling if it would cause them serious distress.

• A movement away from “Doctors know best” all of the time

  • Pearce v United Bristol Healthcare [1998]:

    • Lord Woolf:

      • Medical opinion to justify non-disclosure must be reasonable and responsible

        • If there is a significant risk which would affect the judgement of the patient, then in the normal course it is the responsibility of the doctor to inform the patient of that risk

          • If the information is needed...