#1752 - Sidaway V Bethlehem Royal Hospital - Medical Law

Sidaway v Bethlehem Royal Hospital [1985] AC 871

House of Lords

Facts

C underwent an operation where there was an inherent small 2% risk that even if performed properly, might lead to spinal damage. C was unlucky and ended up severely disabled. C sued the hospital and the deceased surgeon. The surgeon had told C that there was a chance of disturbing a nerve and the consequences, he did not tell her about the possible damage to the spinal chord.

Held Lord Scarman (dis)

• The question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient

  • is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations.

    • It is wrong that medical judgment should determine whether there exists a duty to warn of risk and its scope as it would be strange to permit doctors to determine when a duty to warn arises.

• While it can’t be faulted on the Bolam test

  • his patient may have been deprived of the opportunity to exercise her right of decision in the light of information which she, had she received it,

    • might reasonably have considered to be of importance in making up her mind.

  • It is a sound and reasonable proposition that the doctor should be required to exercise care in respecting the patient's right of decision.

    • A patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor

      • but which may lead him to a different decision from that suggested by a purely medical opinion.

• The doctor's duty can be seen, therefore, to be one which requires him not only to advise as to medical treatment

  • but also to provide his patient with the information needed so the patient can balance the medical advantages and risks alongside for example,

    • his family, business or social responsibilities of which the doctor may be only partially, if at all, informed

Held Lord Diplock (maj)

• The Bolam test is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions

  • In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon's shoes;

    • it has to rely upon and evaluate expert evidence, remembering that it cannot give effect to any preference it may have for one responsible body of professional opinion over another,

      • provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion.

• Often the only effect that mention of risks can have on the patient's mind, if it has any at all,

  • can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo.

  • To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have,

    • is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient,

      • and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied

Held Lord Bridge (maj)

• How much risks should be disclosed to the patient? There are two theoretical extreme positions and neither is satisfactory

  • It could be argued that, if the patient's consent is to be fully informed,

    • the doctor must specifically warn him of all risks involved in the treatment offered, unless there is a sound clinical reason not to do so.

  • At the other extreme it could be argued that, once the doctor has decided what treatment is, on balance of advantages and disadvantages, in the patient's best interest,

    • he should not alarm the patient by volunteering a warning of any risk involved, however grave and substantial, unless asked by the patient

• There is logical force of the Canterbury doctrine, proceeding from the premise that the patient's right to make his own decision

  • must at all costs be safeguarded against the kind of medical paternalism which assumes that "doctor knows best."

• But the doctrine as quite impractical in application for three principal reasons.

  • First, it gives insufficient weight to the realities of the doctor/patient relationship.

    • The doctor has to decide how is best to communicate to the particular patient, and cannot educate the patient to his own standard of medical knowledge of all the relevant factors involved.

    • He may take the view, certainly with some patients, that...