Duty to warn patients of the risk

This has seen a big shift from paternalism to a patient centric approach partnership. 

Unusual situations- 

In the most cases the Dr has not been negligent in the performance of the medical procedure. In these cases the allegations of negligence are because Dr's have failed to inform the patients of what to expect even if things go well eg inherent risks. 

We will consider duty and causation in relation to this topic. Don't necessarily need to prove harm. There may be inherent side effects of the process/drug. 

Bolam v Friern Hospital Management Trust 1957- man had depression and they suggest electric shock therapy. Failed to relax him with drugs as some Dr's felt this was alright and others didnt. He broke his pelvis. Related to duty to warn and neglience. The claimant failed as a reasonable body of medics agreed with the Dr. 

The standard of care expected of Dr's is that of the ordinary skilled man exercising and professing to have that special skill, there will be no negligence if a doctor acts in accordance with the practice accepted at the time as proper by a responsible body of medical opinion. 

Objective test that doesn't require standard of protection. Self regulating Dr's. 

Sidaway v The Governors of Bethlem Royal Hospital 1985- S had shoulder and neck problems. She was nervous about surgery and was cautious. She had operation. There was a 1-2% risk of permanent disability. Claim was worth £67'000. Dr advised her to go ahead with the operation and the risk that she was warned of materialised. She loses case. 

The issue was whether the Dr had to warn the patient of the risks inherent in the forthcoming operation. Bolam was applied. If a responsible body of medics wouldnt have warned C then the case fails. Lord Bridge added that there might be circumstances where the proposed treatment involved a substantial risk of grave adverse consequences such that the patient had a right to be informed eg 10% risk of stroke during an operation. Lord Scarmans opinion differed from others, he favoured a patient centred approach. 

Diplock felt Bolam should apply but added caveat of 'if claimant had asked about specific risks, the Dr must answer these honestly.' 

This is not really fair, as the patient may not know what to ask. 

Pearce v United Bristol Healthcare Trust 1998- P had 5 children and was pregnant with the 6th. She was an anxious patient. Baby was two weeks late. Sees Dr, and she cried and begged to be induced or have a C-section. Dr said there may be risks if they do this. He said to let nature take its course and doesnt warn of the risks of leaving it. Higher risk if she was induced but smaller risk of significant harm if left. 

They were harsh on her when they were cross examining. Hard with hindsight- the risk was now 100%. Her baby died and it died on the 3rd December. She was then induced on the 4th December. Only had Sidaway before this- to apply Bolam. Medics said that they would have advised the same. Is this an exception those, as this may have been grave harm? 

Issue- whether the 0.1-0.2% chance of a still birth associated with waiting for a 'nature to take its course' should have been disclosed to a patient whose baby was 2 weeks overdue. 

Woolf wanted to change the test. Responsibility is passed onto the Dr and not the patient. 'If there is a significant risk which would affect the judgement of a reasonable patient then... it is the responsibility of the Dr to inform the patient of that significant risk... so that the patient can determine for him or herself as to what course he or she should adopt.' 

Reasonable patients expectations-

Commentary- Reasonable patient 2 weeks overdue would find significant. Court decided it was not significant. Very small risk and so she loses her case. 

Decision has been criticised by Rob Heywood. Moves in right direction but not much help without subjective test. 

Roseberg v Percival- 'The nature of the risk causes more gravitas than it's incidence'- Gummow J. To some patients the severity matters more than incidence.

Chester v Afshar 2004- C has severe back pain for 7 years. Prefers non surgical options. Dr recommends an operation. Wants to take out three discs. C is anxious but doesnt ask specific question. He said 'I havent crippled anyone yet, but you might be the first.' She was not warned of 1-2% risk of severe disability. Risk materialises, her life is destroyed and in constant pain. 

She wins her case. This was a serious risk to her and the Dr should have had a duty to warn. In court said she needed to prove but for test. She said she probably would have had the operation anyway but on a different date. 

Ratio- a surgeon owes a legal duty to a patient to warn him in general terms of possible serious risks involved in the procedure. The only qualification is that there may be a wholly exceptional cases where objectively in the best interests of the patient the surgeon may be excused from giving a warning. 

This is a more patient centric approach. Steyn said that 'in modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established risk of serious injury as a result of surgery.' 

But it is the Dr who assesses the 'seriousness'. The law is not overly clear and not concrete. 

Is it enough to warn of risks or do Dr's have to go further and discuss alternatives? 

Birch v UCL NHS 2008- B was in hospital for an emergency. They believed she may have an anurism. Dr said MRI was the best option but there were none available. They sent her to a special hospital. Instead of an MRI, they place a catherter in her head. She wasn't told of the 1% chance of a stroke. Signs consent form and has stroke. Had invasive procedure... 

when needed non invasive. She said should've been told of alternatives before deciding about catherter. Agreed other Dr's would have done the same. She said there was a non invasive method she could have waited for. 

The court were willing to logically extend the rule. Should be a duty to disclose alternative treatments before patient makes decision. Judicial creativity. She had been subjected to a procedure they decided wasnt necessary and could've waited for MRI scanner. 

Persuasive precedent from Australia- Rodgers v Whittaker 1992- eye surgery and patient was anxious. C already had one eye severely impaired. Wasn't told of the side effects and the patient is blinded.

Patient wins. The material risk was important to this patient so the Dr should have told them. Introduced objective and subjective test. Placed patient at the centre of future risk cases. 

This was a foundation for change in the law in this country. 

Montgomery v Lanarkshire HB 2015- Scottish case. M was 5ft and pregnant and had diabetes. Diabetic mums children tend to be bigger. 9-10% chance that the baby will get stuck in the natural birth. She was very worried. Dr thought a natural birth should be fine given the babies size. Decided not to scan again as she was anxiour. The 9% chance was never told to her. 70% of stuck babies could be delivered through manipulation. 3% chance the Mother has severe tearing. 0.1% chance the baby gets cerebral palsey or dies. The baby gets stuck for 12 minutes and cut area to get baby out. Baby has cerebral palsey and arms have nerve damage as well. 

On first instance she loses. The 0.1% chance was not serious enough.

Materiality defined- 'would a reasonable person in the patients position attach significance to this risk, or is, should a reasonable Dr be aware that this patient would attach significance to it?' 

Bolam now has little impact on the duty to warn, the law on duty to inform has moved from a Dr centred approach to a patient centred approach. Sidaway has been overruled so the law is clearer. 

This may be a burden on Dr's and take quite a lot of time. However this decision is welcomed and is in line with the General Medical Councils guidelines. Approved Scarmans dissent in Sidaway. 

There are two exceptions to this rule of duty to warn- 

• 1) Theraputic exception- if you think that telling them, may harm them mentally or physically. Incredibly vague. One commentator said essentially paternalism again. Need to apply stringently, and cant be used to subvert the main rule. 
• 2) Necessity exception- split second decisions, may not be conscious. Fine line on mental capacity. 

Was Montgomery significant? 

Overruled Sidaway. Was this just a case of judicial catch up? This had been in rules s28-31 of the GMC guidelines anyway. They promote a 'consent: patients and doctors making decisions together' approach. Far more discussion and questioning of the patient is needed now. Offering alternatives is required. 

Is this a little bit too much power for the patient? 

Causation- 

In these types of cases there are 3 hurdles to overcome with causation.

• 1) C must have suffered an injury which has been made worse than it would have been if the medical procedure had not been performed. 
• 2) the injury as a result of the Dr failing to disclose the risk. 
• 3) If C had been told of the risk he would not have consented to the treatment. (Failure to warn- this is speculative. Hard with hindsight). 

Often comes down to witnesses and judge needs to decide. The claimant already has serious injuries at this point. Subjective test. 

In Fairchild- couldnt strictly use 'but for' rule. They relaxed the rule of policy reasons.

Chester v Afshar- This was a private Dr and most agree with this decision. She was very honest. She had 2 of the same judges from Fairchild. 

The patient never claimed that, if adequately advised of the risks, she would never at any time consented to surgery. She said she might not have had it that day, but probably would another. She doesnt satisfy the but for rule. 

Decision- they followed Chappel v Hart (Australian). They made but for very wide for her. They said she wouldnt have had it that day if she knew of the risk. Bingham and Hoffmann thought the other judges went too far (although they were fine in Fairchild.) 

Some say that Chester created a fictitious causal link. But it does give substance to patients right of autonomy. 'However this might impose a disproportionate financial burden on defenders since they will have to pay for the manifestation of the risks that their patients would probably...

have been willing to have run.'- Roderick Bagshaw. 

• Andrew Crib- not fair to require patient to prove they would never have had it. (Too high a burden)
• Foster- said like Alice in Wonderland, human rights are affected by not telling of risk so should just compensate for that. Not but for test. 
• Emily Jackson- Chester was arguing for right to weigh up risks before making her decision and so should win for that. 

Chester relied heavily on policy to relax the 'but for' rule. There was heavy use of Fairchild. It is a nod to corrective justice-

• 'At the very least Fairchild shows that where justice and policy demand it, a modification of causation principles is not beyond the wit of a modern court.' 
• Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles. 
• This result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover the decision announced by the House today reflects...

• the reasonable expectations of the public in contemporary society. 

Lord Steyn- 'it is a distinctive feature of the present case, that 'but for' the surgeons negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occured when it did and the chance of it occuring on a subsequent occasion was very small. It could therefore be said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned.' Better for society and the Dr has insurance. 

Lord Walker- His views were influential. He recognised that in the 20 years since the Sidaway decision, autonomy of the patient had become more widely recognised. He cited Pretty v UK where the ECHR held that there was a positive duty on the state to protect a persons private life, including their right to autonomy- 'on the imposition of medical treatment, without the consent of a mentally competent adult patient, would intefere with a persons physical integrity in a manner capable of engaging the rights protected under A8(1) of the Convention.' 

Richard Dworkin- 'recognising an individual right of autonomy makes self creation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or.... 

incoherent- but in any case distinctive- personality. It allows us to lead our lives rather than be led along them, so that each of us can be, to the extent a scheme of rights can make this possible, what we have made of ourselves. We allow someone to choose death over radical amputation or a blood transfusion, if that is his informed wish, because we acknowledge his right to a life structured by his own values.'  This recognises that you can do what you want with your body.

So as it stands the but for test is relaxed. Reasonable person test- assumes we are reasonable all the time. Not true, especially in the case of surgery. 

Montgomery on causation- Trial question- would she have said no to a natural birth if she knew the risk? Trial judge didnt believe her. Supreme Court ignored this finding of fact and looked themselves- this is not done very often. They said should she have been told? Yes and so causation was easy to find. Patient friendly law. 

The court didnt need to discuss the relaxation of the but for rule in Chester. They could have made an obiter comment but didnt. It may be that proof of causation in the traditional sense is no longer required in consent cases. No subsequent authority has considered the impact of the decision in relation to consent cases. Chester is still good law. 

Wallace v Kam 2013 (Australian)- patient had spine problem and operation, similar to C v A. 2 risks- one was may have temporary thigh pain and second was a 1 in 20 chance of catastrophic paralysis. Claimant was not told of either of these risks. Patient got the minor injury from it. The pain is temporary but still pain. Said wouldnt have had op if he had known. The court didnt believe him. They said he was relying on the risk of paralysis to claim for risk of thigh pain. Court didnt let him use both points to cover for one. This was very strict. 

This approach acts as a control mechanism. This is persuasive. This is more recent, and clearer than our law. 

Rees v Darlington Memorial Hospital Trust 2004- woman knew she'd go blind so got sterilised because she knew she couldnt look after a child. She still had a child and it was healthy. The sterilisation was negligently performed. Claimant not entitled to recover extra costs of child care occasioned by her disability. Claimant recieved an award of £15000. Not a duty to warn case, tried to claim for cost of bringing up child. The award would be compensatory but would afford some measure of recognition of the wrong done. They did recognise her choice had been taken away from her. 

They wanted to acknowledge precedent but ignored it. Small amount of money. 

Didnt mitigate the loss by abortion. Lots of moral issues. Decision would have been the same if the child was disabled- money may have been a bit more though. 

Why dont we just give money to recognise that rights have been effected? It is hard to quantify the value of a risk. Relax but for test, but may not lead to a flood of claims. 

Get rid of causation altogether? Just for medical negligence. Maybe get rid of for loss of chance claims. 

What if fail to offer alternative treatments? If cancer has gone because of a treatment, it is hard to sue for loss suffered if theyre cured. 

NZ have a different system altogether but are suffering financially. 

Should we reverse the burden of proof? 

Genetics- interesting but not likely to be on exam. 

ABC case- Parent refuses to tell child of condition, but Dr knows child is likely to have it. 

May end up with very severe disease. Apply Montgomery rules- duty to warn patients of a risk that a reasonable person would consider and that persons view. Has allowed gates to be opened on this one. 

But for in diagnosis and treatment is quite harsh on the claimants. 

£1.4 billion in claims against the NHS in 2014/15. 50% of claims under a certain amount were solicitors costs.