BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1 (21 February 1985)
URL: http://www.bailii.org/uk/cases/UKHL/1985/1.html
Cite as: [1985] UKHL 1, [1985] AC 871, [1985] 1 All ER 643

[New search] [Printable version] [Buy ICLR report: [1985] AC 871] [Help]


JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/245

    SIDAWAY (A.P.) (APPELLANT)
    V.

    BETHLEM ROYAL HOSPITAL AND THE MAUDESLEY HOSPITAL HEALTH
    AUTHORITY AND OTHERS (RESPONDENTS)

    JUDGMENT

    Die Jovis 21° Februarii 1985

    Upon Report from the Appellate Committee to whom was
    referred the Cause Sidaway against Bethlem Royal Hospital and
    the Maudesley Hospital Health Authority and others, That the
    Committee had heard Counsel on Monday the 3rd, Tuesday the
    4th, and Wednesday the 5th days of December last upon the
    Petition and Appeal of Amy Doris Sidaway of 87 Friern Road
    London SE22 praying that the matter of the Order set forth in
    the Schedule thereto, namely an Order of Her Majesty's Court
    of Appeal of the 23rd day of February 1984, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and
    that the said Order might be reversed, varied or altered or
    that the Petitioner might have such other relief in the
    premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as also upon the Case of The
    Board of Governors of the Bethlem Royal Hospital and The
    Maudesley Hospital and Coutts & Co. and Mrs. Valda Helen
    Falconer, in their capacities as executors of Mr. M. A.
    Falconer deceased, lodged in answer to the said Appeal, and
    due consideration had this day of what was offered on either
    side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 23rd day of February 1984 complained of in the
    said Appeal be, and the same is hereby, Affirmed and that the
    said Petition and Appeal be, and the same is hereby,
    dismissed this House: And it is further Ordered, That the
    Costs of the Appellant in respect of the said Appeal be taxed
    in accordance with Schedule 2 to the Legal Aid Act 1974 and
    that the Costs of the Respondents be paid out of the Legal
    Aid Fund pursuant to section 13 of the Legal Aid Act 1974.

    Cler: Parliamentor:

    HOUSE OF LORDS

    55

    SIDAWAY (A.P.) (APPELLANT)

    BETHLEM ROYAL HOSPITAL AND THE MAUDESLEY

    HOSPITAL HEALTH AUTHORITY AND OTHERS

    (RESPONDENTS)

    Lord Scar man
    Lord Diplock
    Lord Keith of Kinkel
    Lord Bridge of Harwich
    Lord Templeman


    LORD SCARMAN

    My Lords,

    The state of the evidence in this case compels me to the
    conclusion that the appellant has not made out a case of
    negligence against her surgeon, the late Mr. Murray A. Falconer.
    I regret profoundly that after a trial in the course of which the
    judge listened with great care to a substantial and complex volume
    of medical evidence and delivered a meticulous and detailed
    judgment, and after two appellate hearings (by the Court of
    Appeal and your Lordships' House), the conclusion should be that
    the plaintiff has failed to prove her case.

    Such a result is, I believe, inevitable for a number of
    reasons. The issue is whether Mr. Falconer failed to exercise due
    care (his skill was not challenged) in the advice which he gave his
    patient when recommending an operation: I use the word advice
    to cover information as to risk and the options of alternative
    treatment. Whatever be the correct formulation of the applicable
    law, the issue cannot be settled positively for or against the
    doctor without knowing what advice, including any warning of
    inherent risk in the operation, he gave his patient before she
    decided to undergo it and what was his assessment of the mental,
    emotional, and physical state of his patient. The trial judge
    derived no help on these two vital matters from the evidence of
    the appellant. Mr. Falconer was not an available witness, having
    died before trial, and the medical records afforded no sure guide
    on either matter. Regrettable though a "non-proven" verdict is, it
    is not, therefore, surprising. Where the court lacks direct
    evidence as to the nature and extent of the advice and warning (if
    any) given by the doctor and as to his assessment of his patient
    the court may well have to conclude that the patient has failed to
    prove her case.

    This lack of evidence is unsatisfactory also from a purely
    legal point of view. I am satisfied, for reasons which I shall
    develop, that the trial judge and the Court of Appeal erred in law
    in holding that in a case where the alleged negligence is a failure
    to warn the patient of a risk inherent in the treatment proposed,
    the "Bolam test", to which I shall refer in detail at a later stage
    of my speech, is to be applied. In my view 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

    - 1 -

    competent professional opinion and practice at the time, though
    both are, of course, relevant considerations, but by the court's
    view as to whether the doctor in advising his patient gave the
    consideration which the law requires him to give to the right of
    the patient to make up her own mind in the light of the relevant
    information whether or not she will accept the treatment which he
    proposes. This being my view of the law, I have tested the facts
    found by the trial judge by what I believe to be the correct legal
    criterion. In my view the appellant has failed to prove that Mr.
    Falconer was in breach of the duty of care which he owed to her
    in omitting to disclose the risk which the trial judge found as a
    fact he did not disclose to her.

    I turn now to the detailed facts and issues in the case.

    This is an appeal by the plaintiff, Mrs. Sidaway, from the
    dismissal by the Court of Appeal of her appeal from the judgment
    of Skinner J. given on 19 February 1982 whereby he dismissed her
    action for damages in respect of the personal injuries which she
    suffered as a result of a surgical operation performed upon her by
    a neuro-surgeon on 29 October 1974. The first defendants are the
    governing body of the Maudsley Hospital where she was treated
    and where she underwent the operation. The second defendants
    are the executors of Mr. Falconer, the distinguished neuro-surgeon
    who advised and performed the operation. Mr. Falconer died in
    August 1977, some five years before the trial of the action. Mrs.
    Sidaway does not allege negligence in the performance of the
    operation. Her case is that she was not informed of a risk
    inherent in the operation, that the risk materialised with the result
    that she suffered, and continues to suffer, serious personal injury,
    and that, had she been warned, she would not have consented to
    the operation. Damages are agreed at £67,500 subject to liability.

    The case is plainly of great importance. It raises a
    question which has never before been considered by your Lordships'
    House. Has the patient a legal right to know, and is the doctor
    under a legal duty to disclose, the risks inherent in the treatment
    which the doctor recommends? If the law recognises the right and
    the obligation, is it a right to full disclosure or has the doctor a
    discretion as to the nature and extent of his disclosure? And, if
    the right be qualified, where does the law look for the criterion
    by which the court is to judge the extent of the disclosure
    required to satisfy the right? Does the law seek guidance in
    medical opinion or does it lay down a rule which doctors must
    follow, whatever may be the views of the profession? There is
    further a question of law as to the nature of the cause of action.
    Is it a cause of action in negligence, i.e. a breach of the duty of
    care, or is it based on a breach of a specific duty to inform the
    patient which arises not from any failure on the part of the
    doctor to exercise the due care and skill of his profession but
    directly from the patient's right to know?

    Before attempting to answer these questions it is necessary
    to set out the facts of the case. At once a formidable difficulty
    arises. Mr. Falconer was dead before the trial. The judge was
    not prepared to accept Mrs. Sidaway's evidence that he gave no
    warning. The judge was, therefore, without any direct evidence as
    to the extent of the warning given. Further, the judge lacked
    evidence which Mr. Falconer alone could have given as to his

    - 2 -

    assessment of his patient with especial reference to his view as to
    what would be the effect upon her of a warning of the existence
    of a risk, albeit slight, of serious personal injury arising from the
    operation however skilfully and competently it was performed.
    Such being the limitations upon the availability of critically
    important evidence, I confess that I find it surprising that the trial
    judge felt able to reach the detailed findings as to the extent of
    the warning given which are a striking feature of his judgement.
    There is, however, no appeal against his findings; and I have no
    doubt that your Lordships' House must proceed upon the basis of
    the facts as found. Nevertheless, the lack of knowledge of Mr.
    Falconer's assessment of his patient reduces to some extent the
    guidance which your Lordships can give for the assistance of
    judges in future cases. It also presents difficulties for the
    appellant.

    Mrs. Sidaway was 71 years of age at the time of the trial
    in 1982. She was severely disabled by a partial paralysis resulting
    from her operation. The relationship of doctor and patient
    between Mr. Falconer and herself had been long-standing prior to
    the operation. In 1958 she had injured an elbow at work and as a
    result had suffered persistent pain. Treatment failed to relieve
    pain. In July 1960, she was referred to the Maudsley Hospital
    where Mr. Falconer discovered that the second and third cervical
    vertebrae were congenitally fused and that there was a significant
    narrowing of the spinal column between the fifth and sixth
    vertebrae. Mr. Falconer diagnosed the deformity in this area as
    the cause of her pain. He decided to operate. He removed the
    disc between the fifth and sixth vertebrae of the neck and fused
    the two vertebrae by a bone graft. Although pain persisted for
    another two years, it eventually disappeared. Mr. Falconer's
    diagnosis was proved correct and his operation ultimately
    succeeded in relieving his patient's pain.

    Mr. Falconer annually reviewed his patient's progress
    between I960 and 1970. In 1973, he wrote to Mrs. Sidaway asking
    how she was. She replied, complaining of very persistent pain "in
    the right arm and shoulder," which was the same area as before,
    and now also of pain in the left forearm. Mr. Falconer saw her
    in the early months of 1974. After some delays, she was admitted
    to hospital on 11 October 1974. Her pain in the meantime had
    got progressively worse.

    On admission, Mrs. Sidaway was thoroughly examined by Dr.
    Goudarzi, a junior member of Mr. Falconer's team. On 17
    October, she underwent a myelogram which revealed a partial
    block at the level of the C4/5 disc space, a posterior ridge in the
    same area which appeared to have, at least in part, a bony
    structure, and a narrowing of the subarachnoid space in the same
    area. Mr. Falconer diagnosed that pressure on a nerve root was
    the cause of her pain and decided to operate. The operation,
    which he performed on 29 October 1974, and its risks were, if I
    may respectfully say so, admirably and lucidly described by the
    trial judge, from whose judgment I take the following description:

    "The operation consisted of a laminectomy of the fourth
    cervical vertebra and a facetectomy or foraminectomy of
    the disc space between the fourth and fifth cervical
    vertebrae. A laminectomy is an excision of the posterior

    - 3 -

    arch of the vertebra. It gives the surgeon access to the
    foramen or channel through which nerves travel from the
    spine laterally. Randomly placed in the foramina, running
    alongside the nerves, are small blood vessels known as the
    radicular arteries. These supply blood to the cord and are
    extremely vulnerable because of (a) their size and (b) the
    unpredictable nature of their siting. In one foramen, there
    may be one, two or more radicular arteries. Their rupture
    or blockage may cause damage to the cord by depriving it
    temporarily or permanently of its blood supply at the
    relevant level. At the operation, Mr. Falconer freed the
    fourth cervical nerve root by removing the facets, or small
    bony protuberances, from the fourth verbebra and used a
    dental drill to free the nerve within the foramen."

    It was common ground between ail the neuro-surgeons who gave
    evidence that the operation involved specific risks beyond those
    inherent in all operations under general anaesthetic. So far as the
    general risks are concerned, the judge commented that Mrs.
    Sidaway was a healthy woman apart from her cervical spine, and
    no medical witness had suggested that any special warning as to
    the existence of those risks needed to be given.

    The two specific risks of injury were: (1) damage to a nerve
    root in the area of the operation; and (2) damage to the spinal
    cord either by direct contact or by some interference, which might
    be slight and of short duration or very much more serious, of the
    radicular arteries running through a foramen.

    The risk of either sort of damage occurring was not great: one
    surgeon estimated the degree of risk at between one and two per
    cent. But, if either risk materialised, the injury could be severe.
    Mr. Uttley, the distinguished surgeon called on behalf of Mrs.
    Sidaway, said that the possible effects of the damage ranged from
    a sensation of pins and needles in the hand to paraplegia, i.e. a
    partial paralysis. All the surgeons who were called as expert
    witnesses accepted that the risk of damage, though slight, was a
    real one. They distinguished between the two categories of
    specific risk, the effect of damage to a nerve root being in all
    probability that the operation would fail to relieve and might
    increase pain, while damage to the spinal cord might cause a
    partial paralysis. The risk of damage to the spinal cord was,
    however, in their opinion less that one per cent.

    There is no challenge to the judge's findings: (1) that Mr.
    Falconer's diagnosis was correct; and (2) that his recommendation
    in favour of operative treatment was one which he could
    reasonably and properly have made to his patient; and (3) that he
    performed the operation with due care and skill.

    The issue between the parties arises solely in respect of the
    warning, if any, which Mr. Falconer gave his patient of the
    specific risks inherent in the operation. None of the medical
    witnesses suggested that his decision to recommend the operation
    was itself wrong. And no one has ever suggested that the
    operation was carried out otherwise than competently and skilfully.
    The one criticism, made and pursued on behalf of Mrs. Sidaway
    throughout this litigation, is that Mr. Falconer was in breach of
    his duty as her medical adviser in failing to warn her of the risk
    of damage to the spinal cord.

    - 4 -

    Mrs. Sidaway consented to the operation. She signed the
    usual consent form, in which she declared that the nature and
    purpose of the operation had been explained to her by Dr.
    Goudarzi. Dr. Goudarzi confirmed that he had given her this
    explanation: but he made it clear in his evidence that he would
    have left warning of the risks to Mr. Falconer. And we know
    from the hospital records that Mr. Falconer saw his patient before
    he operated. It would have been his practice to give a warning:
    but a finding as to what warning he gave faces the formidable
    difficulty to which I have already referred, that Mr Falconer was
    not available to give evidence. Nevertheless, the judge, while
    refusing to accept Mrs. Sidaway's evidence that she was given no
    warning, made the following findings upon the balance of
    probabilities. He said:

    "on the evidence . . . the probabilities are that ... on the
    day before the operation he [Mr. Falconer] followed his
    usual practice ... It is probable that he explained the
    nature of the operation [to his patient] ... in simple
    terms. ... As to the risks, I think it is probable that
    he mentioned the possibility of disturbing a nerve root and
    the consequences of doing so, but I am satisfied that he did
    not refer to the danger of cord damage or to the fact that
    this was an operation of choice rather than necessity."

    The medical witnesses were agreed that they would give a
    patient some warning of the specific risks involved before
    performing an operation of this kind. They would explain the
    nature and purpose of the operation, and that there was a small
    risk of untoward consequences and of an increase of pain instead
    of relief. Mr. Uttley would go further: he would warn of the
    possible risk of some weakness of the legs resulting from the
    operation. Two answers in his cross-examination were of great
    importance. When asked whether he would question the judgment
    of a surgeon that it was not in his patient's interest to frighten
    her by talking about death or paralysis, he replied "not at all:"
    and he agreed that such a judgment would be in accordance with a
    practice accepted as proper by a responsible body of competent
    neuro-surgeons. The existence of such a practice was also
    recognised by the other medical witnesses. Their view may be
    summarised as being that the extent of the warning is a matter
    for medical judgment with especial importance attached to the
    doctor's assessment of his patient.

    This being the state of the evidence, the question for the
    House is whether the omission by Mr. Falconer to warn his patient
    of the risk inherent in the operation of damage to the spinal cord
    with the possible result of a partial paralysis was a breach of duty
    owed by him to his patient. The duty of a doctor to warn was
    considered in Bolam v. Friern Hospital Management Committee
    [1957] 1 W.L.R. 582, where it was treated as one to be answered
    within the context of the duty of care and skill owed by a doctor
    to his patient. In that case, the plaintiff, a voluntary patient in
    the defendants' mental hospital, sustained fractures in the course
    of electro-convulsive therapy. The plaintiff claimed damages
    alleging negligence (1) in failing to administer a relaxant drug
    prior to the treatment: (2) in failing to provide some form of
    manual restraint during the passing of electric current through his

    - 5 -

    brain: and (3) in failing to warn him of the risks involved in the
    treatment. The case was heard by McNair J. and a jury. The
    judge included in his summing-up to the jury a number of
    directions as to the standard of care required of a doctor in
    advising and treating his patient. He said at p. 586:

    "The test is the standard of the ordinary skilled man
    exercising and professing to have that special skill . . .it is
    sufficient if he exercises the ordinary skill of an ordinary
    competent man exercising that particular art."

    He referred at p. 587, without any critical comment, to the
    defence submission that the jury had to make up its mind on each
    of the three major topics" (these included the duty to warn of the
    risks of treatment) whether the defendants were acting in
    accordance with a [emphasis added] practice of competent
    respected professional opinion." And he concluded by directing the
    jury that a doctor is not guilty of negligence if he acts in
    accordance with a practice accepted as proper by a responsible
    body of medical men skilled in that particular art." When the
    judge dealt with the facts, he reminded the jury of the differing
    evidence of the doctors as to the extent of warning which they
    believed to be proper before a patient decided to undergo a
    surgical operation. They all treated the question as one for
    medical judgment. There was, however, at p. 590, this difference
    of opinion among them: the doctor who recommended the E.C.T.
    said that he did not agree that a patient should be warned of all
    the risks of the operation: he should be told that "there are some
    slight risks, but I do not tell him of the catastrophe risk." Others
    who were called to give independent expert evidence gave it as
    their opinion that a warning should be given, but its extent was a
    matter of medical judgment with especial importance attached to
    the character of the patient: "every patient has to be considered
    as an individual" (Dr. Page) and "Giving the full details may drive
    a patient away" (Dr. Baker). McNair J. put the issue thus to the
    jury, at p. 590:

    "Having considered the evidence on this point, you have to
    make up your minds whether it has been proved to your
    satisfaction that when the defendants adopted the practice
    they did (namely, the practice of saying very little and
    waiting for questions from the patient), they were falling
    below a proper standard of competent professional opinion
    on this question of whether or not it is right to warn."

    The jury found for the defendants. The judge clearly directed the
    jury to treat the test of negligence which he formulated as
    exclusively applicable in medical cases. The Bolam principle may
    be formulated as a rule that a doctor is not negligent if he acts
    in accordance with a practice accepted at the time as proper by a
    responsible body of medical opinion even though other doctors
    adopt a different practice. In short, the law imposes the duty of
    care: but the standard of care is a matter of medical judgment.

    The Bolam principle has been accepted by your Lordships'
    House as applicable to diagnosis and treatment: Whitehouse v.
    Jordan
    [1981] 1 WLR 246 (treatment), and Maynard v. West
    Midland Regional Health Authority
    [1984] 1 W.L.R. 634 (diagnosis).
    It is also recognised in Scots law as applicable to diagnosis and

    - 6 -

    treatment: indeed, McNair J. in the Bolam case cited a Scots
    decision to that effect, Hunter v. Hanley 1955 SLT 213 (Lord
    President Clyde at p. 217.)

    But was the judge correct in treating the "standard of
    competent professional opinion" as the criterion in determining
    whether a doctor is under a duty to warn his patient of the risk,
    or risks, inherent in the treatment which he recommends? Skinner
    J. and the Court of Appeal have in the instant case held that he
    was correct. Bristow J. adopted the same criterion in Chatterton
    v. Gerson
    [1981] Q.B. 432. The implications of this view of the
    law are disturbing. It leaves the determination of a legal duty to
    the judgment of doctors. Responsible medical judgment may,
    indeed, provide the law with an acceptable standard in determining
    whether a doctor in diagnosis or treatment has complied with his
    duty. But is it right that medical judgment should determine
    whether there exists a duty to warn of risk and its scope? It
    would be a strange conclusion if the courts should be led to
    conclude that our law, which undoubtedly recognises a right in the
    patient to decide whether he will accept or reject the treatment
    proposed, should permit the doctors to determine whether and in
    what circumstances a duty arises requiring the doctor to warn his
    patient of the risks inherent in the treatment which he proposes.

    The right of "self-determination" - the description applied by
    some to what is no more and no less than the right of a patient
    to determine for himself whether he will or will not accept the
    doctor's advice - is vividly illustrated where the treatment
    recommended is surgery. A doctor who operates without the
    consent of his patient is, save in cases of emergency or mental
    disability, guilty of the civil wrong of trespass to the person: he
    is also guilty of the criminal offence of assault. The existence of
    the patient's right to make his own decision, which may be seen
    as a basic human right protected by the common law, is the
    reason why a doctrine embodying a right of the patient to be
    informed of the risks of surgical treatment has been developed in
    some jurisdictions in the U.S.A. and has found favour with the
    Supreme Court of Canada. Known as the "doctrine of informed
    consent," it amounts to this: where there is a "real" or a
    "material" risk inherent in the proposed operation (however
    competently and skilfully performed) the question whether and to
    what extent a patient should be warned before he gives his
    consent is to be answered not by reference to medical practice
    but by accepting as a matter of law that, subject to all proper
    exceptions (of which the court, not the profession, is the judge), a
    patient has a right to be informed of the risks inherent in the
    treatment which is proposed. The profession, it is said, should not
    be judge in its own cause: or, less emotively but more correctly,
    the courts should not allow medical opinion as to what is best for
    the patient to override the patient's right to decide for himself
    whether he will submit to the treatment offered him. It will be
    necessary for the House to consider in this appeal what is involved
    in the doctrine and whether it, or any modification of it, has any
    place in English law.

    The appellant's submissions

    The appellant's first submission is that, even if (which she
    does not accept) the Bolam principle determines whether a warning

    - 7 -

    of risk should or should not be given, the facts found establish
    liability. My Lords, the submission is untenable. It is not possible
    to hold that the appellant has shown negligence in the Bolam sense
    on the part of Mr. Falconer in advising or treating her. His
    decision not to warn her of the danger of damage to the spinal
    cord and of its possible consequences was one which the medical
    witnesses were agreed to be in accordance with a practice
    accepted as proper by a responsible body of opinion among neuro-
    surgeons. Further, the medical evidence also emphasised that in
    reaching a decision whether or not to warn his patient a
    competent and careful surgeon would attach especial importance to
    his assessment of the character and emotional condition of his
    patient, it being accepted that a doctor acting in the best
    interests of his patient would be concerned lest a warning might
    frighten the patient into refusing an operation which in his view
    was the best treatment in the circumstances. Nobody knows what
    Mr. Falconer's assessment of Mrs. Sidaway's character, state of
    mind and emotion was before her operation. There is no evidence
    to justify an inference that this careful and compassionate man
    (the history of the case, which I have related, shows that he
    merited both adjectives) would have failed to consider what was in
    the best interests of his patient. He could well have concluded
    that a warning might have deterred her from agreeing to an
    operation which he believed to be the best treatment for her.

    The appellant's second submission is that she has a cause of
    action which is independent of negligence in the Bolam sense. The
    submission is based on her right to decide for herself whether she
    should submit to the operation proposed. In effect, she invokes
    the transatlantic doctrine of informed consent.

    The law

    The doctrine is new ground in so far as English law is
    concerned. Apart from the judgment of Bristow J. in Chatterton
    v. Gerson
    [1981] Q.B. 432 I know of only one case prior to the
    present appeal in which an English court has discussed it. In Hills
    v. Potter
    [1984] 1 W.L.R. 641 Hirst J. followed Skinner J. in this
    case, adding a comment with which I respectfully agree, that it
    would be deplorable to base the law in medical cases of this kind
    on the torts of assault and battery. He did, however, carefully
    and helpfully devote part of his judgment to a consideration of the
    transatlantic cases which accept a doctrine of informed consent.
    He was, if I may say so, right to refuse to follow them: he was
    sitting at first instance and was faced with formidable English
    authority accepting the Bolam test (Skinner J. in the present case
    and Bristow J. in respect of advice: and this House in respect of
    diagnosis and treatment.) But the circumstance that this House is
    now called upon to explore new ground is no reason why a rule of
    informed consent should not be recognised and developed by our
    courts. The common law is adaptable: it would not otherwise
    have survived over the centuries of its existence. The concept of
    negligence itself is a development of the law by the judges over
    the last hundred years or so. The legal ancestry of the tort of
    negligence is to be found in the use made by the judges of the
    action on the case. Damage is the gist of the action. The action
    on the case was sufficiently flexible to enable the judges to
    extend it to cover situations where damage was suffered in
    circumstances which they judged to call for a remedy. It would

    - 8 -

    be irony indeed if a judicial development for which the opportunity
    was the presence in the law of a flexible remedy should result
    now in rigidly confining the law's remedy to situations and
    relationships already ruled upon by the judges.

    Counsel for the appellant referred to Nocton v. Lord
    Ashburton
    [1914] A.C. 932 in an attempt to persuade your
    Lordships that the relationship between doctor and patient is of a
    fiduciary character entitling a patient to equitable relief in the
    event of a breach of fiduciary duty by the doctor. The attempt
    fails: there is no comparison to be made between the relationship
    of doctor and patient with that of solicitor and client, trustee and
    cestui qui trust or the other relationships treated in equity as of a
    fiduciary character. Nevertheless the relationship of doctor and
    patient is a very special one, the patient putting his health and his
    life in the doctor's hands. Where Nocton v. Lord Ashburton does
    throw light is upon the approach of our law to new or special
    situations and relationships not previously considered by the judges.
    In that case the House had to consider the field covered by Perry
    v. Peek
    (1889) 14 App.Cas. 337, the famous case in which the
    House had held that in an action of deceit it is necessary to prove
    actual fraud. Lord Haldane had this to say at [1914] A.C. 932;
    947:

    "My Lords, the discussion of the case by the noble and
    learned Lords who took part in the decision appears to me
    to exclude the hypothesis that they considered any other
    question to be before them than what was the necessary
    foundation of an ordinary action for deceit. They must
    indeed be taken to have thought that the facts proved as to
    the relationship of the parties in Perry v. Peek were not
    enough to establish any special duty arising out of that
    relationship other than the general duty of honesty. But
    they do not say that where a different sort of relationship
    ought to be inferred from the circumstances the case is to
    be concluded by asking whether an action for deceit will lie.
    I think that the authorities subsequent to the decision of the
    House of Lords shew a tendency to assume that it was
    intended to mean more than it did. In reality the judgment
    covered only a part of the field in which liabilities may
    arise. There are other obligations besides that of honesty
    the breach of which may give a right to damages. These
    obligations depend on principles which the judges have
    worked out in the fashion that is characteristic of a system
    where much of the law has always been judge-made and
    unwritten."

    This remains the approach of the judges to new or as yet
    unconsidered situations. 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 recognised by law is not
    adequately protected, either to extend existing principles to cover
    the situation or to apply an existing remedy to redress the
    injustice. There is here no novelty: but merely the application of
    the principle "ubi jus ibi remedium." If, therefore, the failure to
    warn a patient of the risks inherent in the operation which is
    recommended does constitute a failure to respect the patient's
    right to make his own decision, I can see no reason in principle
    why, if the risk materialises and injury or damage is caused, the

    - 9 -

    law should not recognise and enforce a right in the patient to
    compensation by way of damages.

    For the reasons already given, the Bolam principle does not
    cover the situation. The facts of this very case expose its
    limitation. Mr. Falconer lacked neither care for his patient's
    health and well-being nor professional skill in the advice and
    treatment which he offered. But did he overlook or disregard his
    patient's right to determine for herself whether or not to have the
    operation? Did he fail to provide her with the information
    necessary for her to make a prudent decision? There is, in truth,
    no evidence to answer these questions. Mrs. Sidaway's evidence
    was not accepted: and Mr. Falconer was dead. Assume, however,
    that he did overlook this aspect of his patient's situation. Since
    neither his advice nor his treatment could 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. On the Bolam view of the
    law, therefore, even if she established that she was so deprived by
    the lack of a warning, she would have no remedy in negligence
    unless she could also prove that there was no competent and
    respected body of medical opinion which was in favour of no
    warning. Moreover, the tort of trespass to the person would not
    provide her with a remedy: for Mrs. Sidaway did consent to the
    operation. Her complaint is that her consent resulted from
    ignorance of a risk, known by the doctor but not made known by
    him to her, inherent in the operation. Nor would the law of
    contract offer her a sure way forward. Medical treatment, as in
    her case, is frequently given today under arrangements outside the
    control of the law of contract.

    One point is clear, however. If failure to warn of risk is
    actionable in English law, it must be because it is in the
    circumstances a breach of the doctor's duty of care: in other
    words, the doctor must be shown to be negligent. English law has
    not accepted a "no-fault" basis for the liability of a doctor to
    compensate a patient for injury arising in the course of medical
    treatment. If, however, the Bolam principle is to be applied to
    the exclusion of any other test to advice and warning, there will
    be cases in which a patient who suffers injury though ignorance of
    a risk known to the doctor has no remedy. Is there any difficulty
    in holding that the doctor's duty of care is sufficiently extensive
    to afford a patient in that situation a remedy, if as a result she
    suffers injury or damage? I think not. The root principle of
    common law negligence is to "take reasonable care to avoid acts
    or omissions which you can reasonably foresee would be likely to
    injure your neighbour": Donoghue v. Stevenson [1932] A.C. 562,
    per Lord Atkin at p.580. If it be recognised that a doctor's duty
    of care extends not only to the health and well-being of his
    patient but also to a proper respect for his patient's rights, the
    duty to warn can be seen to be a part of the doctor's duty of
    care.

    It is, I suggest, a sound and reasonable proposition that the
    doctor should be required to exercise care in respecting the
    patient's right of decision. He must acknowledge that in very
    many cases factors other than the purely medical will play a
    significant part in his patient's decision-making process. The

    - 10 -

    doctor's concern is with health and the relief of pain. These are
    the medical objectives. But 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 to enable the patient to
    consider and balance the medical advantages and risks alongside
    other relevant matters, such as, for example, his family, business
    or social responsibilities of which the doctor may be only partially,
    if at all, informed.

    I conclude, therefore, that there is room in our law for a
    legal duty to warn a patient of the risks inherent in the treatment
    proposed, and that, if such a duty be held to exist, its proper
    place is as an aspect of the duty of care owed by the doctor to
    his patient. I turn, therefore, to consider whether a duty to warn
    does exist in our law and, if it does, its proper formulation and
    the conditions and exceptions to which it must be subject.

    Some American courts have recognised such a duty. They
    have seen it as arising from the patient's right to know of
    material risks, which itself is seen to arise from the patient's
    right to decide for himself whether or not to submit to the
    medical treatment proposed. This is the doctrine of informed
    consent, to which I have already briefly referred. The landmark
    case is a decision of the U.S. Court of Appeals, District of
    Columbia Circuit, Canterbury v. Spence (1972) 464 F. 2d 772.
    This case, which has now been approved by the District of
    Columbia Appeal Court in Grain v. Allison (1982) 443 A. 2d 558, is
    discussed learnedly and lucidly in an article published in the Law
    Quarterly Review, upon which I have drawn extensively in reaching
    my opinion in this appeal. I wish to put on record my deep
    appreciation of the help I have derived from the article, the
    author of which is Mr. Gerald Robertson: the reference of the
    article is "Informed Consent to Medical Treatment", (1981) 97
    L.Q.R. 102. The author deals so comprehensively with the
    American, Canadian, and other countries' case law that I find it
    unnecessary to refer to any of the cases to which our attention
    has been drawn, interesting and instructive though they are, other
    than Canterbury v. Spence and a case in the Supreme Court of
    Canada, Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, in which the
    judgment of the Supreme Court came too late to be considered by
    Mr. Robertson in his article. I have also been greatly assisted by
    the note on the present case by Professor Ian Kennedy in the
    Modern Law Review, (1984) 47 M.L.R. 454.

    It is necessary before discussing the doctrine to bear in
    mind that it is far from being universally accepted in the U.S.A.,
    or indeed elsewhere. Speaking of the position as it was in 1981
    Mr. Robertson said at p. 108:

    "The present position in the United States is one of contrast
    between the minority of States which have chosen to follow
    the lead given by Canterbury by adopting the objective
    'prudent patient' test . . . and the majority of States which
    have been content to adopt the traditional test and
    determine the question of disclosure of risks by applying the
    'reasonable doctor' test."

    - 11 -

    There can be little doubt that policy explains the divergence
    of view. The prolification of medical malpractice suits in the
    U.S.A. has led some courts and some legislatures to curtail or
    even to reject the operation of the doctrine in an endeavour to
    restrict the liability of the doctor and so discourage the practice
    of "defensive medicine" - by which is meant the practice of
    doctors advising and undertaking the treatment which they think is
    legally safe even though they may believe that it is not the best
    for their patient.

    The danger of defensive medicine developing in this country
    clearly exists - though the absence of the lawyer's "contingency
    tee" (a percentage of the damages for him as his fee if he wins
    the case but nothing if he loses) may make it more remote.
    However that may be, in matters of civil wrong or tort, courts
    are concerned with legal principle: if policy problems emerge,
    they are best left to the legislature: McLoughlin v. O'Brian [1983]
    1 A.C. 410.

    In Canterbury v. Spence the court enunciated four
    propositions: (1) the root premise is the concept . . . that every
    human being of adult years and of sound mind has a right to
    determine what shall be done with his own body. (2) the consent is
    the informed exercise of a choice, and that entails an opportunity
    to evaluate knowledgeably the options available and the risks
    attendant upon each: (1972) 464 F. 2d 772; (3) the doctor must,
    therefore, disclose all "material risks"; what risks are "material"
    is determined by the "prudent patient" test, which was formulated
    by the court at p.787:

    "a risk is ... material when a reasonable person, in what
    the physician knows or should know to be the patient's
    position, would be likely to attach significance to the risk
    or cluster of risks in deciding whether or not to forego the
    proposed therapy." (Emphasis supplied).

    (4) the doctor, however, has what the court called a "therapeutic
    privilege." This exception enables a doctor to withhold from his
    patient information as to risk if it can be shown that a reasonable
    medical assessment of the patient would have indicated to the
    doctor that disclosure would have posed a serious threat of
    psychological detriment to the patient.

    In Canada, in Reibl v. Hughes (1980) 114 D.L.R. (3d) 1,
    Laskin C.J.C. expressed broad approval of the doctrine as
    enunciated in Canterbury v. Spence, though it would seem that
    approval of the doctrine was not necessary to a decision in the
    case. I find no difficulty in accepting the four propositions
    enunciated in Canterbury's case. But with two notable exception
    they have not yet been considered, so far as I am aware, by an
    English court. In Chatterton v. Gerson [1981] Q.B. 432, Bristow J.
    did consider whether there is any rule in English law comparable
    with the doctrine of informed consent. At p. 444 he held that a
    doctor ought to warn of what may happen by misfortune however
    well the operation may be carried out "if there is a real risk of a
    misfortune inherent in the procedure" (emphasis supplied). He held
    that whether or not a warning should have been given depended
    upon what a reasonable doctor would have done in the


    - 12 -

    circumstances: and he applied the Bolam test to determine the
    reasonableness of what the doctor did. In Hills v. Potter [1984] 1
    W.L.R. 641 Hirst J., after discussing the doctrine, also applied the
    Bolam test.

    In my judgment the merit of the propositions enunciated in
    Canterbury v. Spence (1972) 464 F. 2d 772 is that without
    excluding medical evidence they set a standard and formulate a
    test of the doctor's duty the effect of which is that the court
    determines the scope of the duty and decides whether the doctor
    has acted in breach of his duty. This result is achieved first by
    emphasis on the patient's "right of self-determination" and secondly
    by the "prudent patient" test. If the doctor omits to warn where
    the risk is such that in the court's view a prudent person in the
    patient's situation would have regarded it as significant, the doctor
    is liable.

    The Canterbury propositions do indeed attach great
    importance to medical evidence, though judgment is for the court.
    First, medical evidence is needed in determining whether the risk
    is material, i.e. one which the doctor should make known to his
    patient. The two aspects of the risk, namely the degree of
    likelihood of it occurring and the seriousness of the possible injury
    if it should occur, can in most, if not all, cases be assessed only
    with the help of medical evidence. And secondly, medical
    evidence would be needed to assist the court in determining
    whether the doctor was justified on his assessment of his patient
    in withholding the warning.

    My Lords, I think the Canterbury propositions reflect a legal
    truth which too much judicial reliance on medical judgment tends
    to obscure. In a medical negligence case where the issue is as to
    the advice and information given to the patient as to the
    treatment proposed, the available options, and the risk, the court
    is concerned primarily with a patient's right. 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. And it is plainly right that a doctor may avoid
    liability for failure to warn of a material risk if he can show that
    he reasonably believed that communication to the patient of the
    existence of the risk would be detrimental to the health (including,
    of course, the mental health) of his patient.

    Ideally, the court should ask itself whether in the particular
    circumstances the risk was such that this particular patient would
    think it significant if he was told it existed. I would think that,
    as a matter of ethics, this is the test of the doctor's duty. The
    law, however, operates not in Utopia but in the world as it is:
    and such an inquiry would prove in practice to be frustrated by
    the subjectivity of its aim and purpose. The law can, however, do
    the next best thing, and require the court to answer the question,
    what would a reasonably prudent patient think significant if in the
    situation of this patient. The "prudent patient" cannot, however,
    always provide the answer for the obvious reason that he is a

    - 13 -

    norm (like the man on the Clapham omnibus), not a real person:
    and certainly not the patient himself. Hence there is the need
    that the doctor should have the opportunity of proving that he
    reasonably believed that disclosure of the risk would be damaging
    to his patient or contrary to his best interest. This is what the
    Americans call the doctor's "therapeutic privilege." Its true
    analysis is that it is a defence available to the doctor which, if he
    invokes it, he must prove. On both the test and the defence
    medical evidence will, of course, be of great importance.

    The "prudent patient" test calls for medical evidence. The
    materiality of the risk is a question for the court to decide upon
    all the evidence. Many factors call for consideration. The two
    critically important medical factors are the degree of probability
    of the risk materialising and the seriousness of possible injury, if
    it does. Medical evidence will be necessary so that the court may
    assess the degree of probability and the seriousness of possible
    injury. Another medical factor, upon which expert evidence will
    also be required, is the character of the risk. In the event of an
    operation is the risk common to all surgery, e.g. sepsis, cardiac
    arrest, and the other risks associated with surgery and the
    administration of an anaesthetic? Or is it specific to the
    particular operation under consideration? With the world-wide
    development and use of surgical treatment in modern times the
    court may well take the view that a reasonable person in the
    patient's situation would be unlikely to attach significance to the
    general risks: but it is not difficult to foresee circumstances
    particular to a patient in which even the general risks of surgery
    should be the subject of a warning by his doctor: e.g. a heart or
    lung or blood condition. Special risks inherent in a recommended
    operational procedure are more likely to be material. The risk of
    partial paralysis, as in this case where the purpose of the
    operation was not to save life but merely to relieve pain,
    illustrates the sort of question which may face first the doctor
    and later the court. Clearly medical evidence will be of the
    utmost importance in determining whether such a risk is material:
    but the question for the court is ultimately legal, not medical in
    character.

    If the doctor admits or the court finds that on the prudent
    patient test he should have disclosed the risk, he has available the
    defence that he reasonably believed it to be against the best
    interest of his patient to disclose it. Here also medical evidence,
    including the evidence of the doctor himself, will be vital. The
    doctor himself will normally be an essential witness: and the
    reasonableness of his assessment may well need the support of
    independent medical testimony.

    My conclusion as to the law is therefore this. To the
    extent that I have indicated I think that English law must
    recognise a duty of the doctor to warn his patient of risk inherent
    in the treatment which he is proposing: and especially so, if the
    treatment be surgery. The critical limitation is that the duty is
    confined to material risk. The test of materiality is whether in
    the circumstances of the particular case the court is satisfied that
    a reasonable person in the patient's position would be likely to
    attach significance to the risk. Even if the risk be material, the
    doctor will not be liable if upon a reasonable assessment of his
    patient's condition he takes the view that a warning would be
    detrimental to his patient's health.

    - 14 -

    Conclusion

    Applying these principles to the present case, I ask first:
    has the appellant shown the risk of damage to the spinal cord to
    have been a material risk? The risk was slight - less than one
    per cent: but, if it were to materalise, it could result in severe
    injury. It was for the appellant, as plaintiff, to establish that the
    risk was so great that the doctor should have appreciated that it
    would be considered a significant factor by a prudent patient in
    the appellant's situation deciding whether or not to have the
    operation. The medical evidence even of Mr. Uttley, the
    appellant's expert witness, gets nowhere near establishing the
    materiality of the risk in the sense just outlined. It is, of course,
    possible that Mr. Uttley's evidence was not directed to anything
    other than negligence in the Bolam sense. If so, the appellant,
    who now relies on the principle of informed consent, must accept
    the consequences: - it was up to her to prove such a case, if she
    were seeking to establish it. Further, we do not know Mr.
    Falconer's assessment of his patient. It is possible that, had he
    lived, he could have enlightened the court on much that would
    have been relevant. After an anxious consideration of the
    evidence I do not find it possible to say that it has been proved
    that Mr. Falconer failed in his duty when he omitted - as we must
    assume that he did - to warn his patient of the risk of injury to
    the spinal cord.

    At the end of the day, therefore, the substitution of the
    Canterbury propositions for the Bolam test of duty and breach of
    duty does not avail the appellant because the evidence does not
    enable her to prove that Mr. Falconer was in breach of his duty
    when he omitted the warning. Lack of evidence was always her
    difficulty; and it remains so, even though, contrary to the
    submission of the respondents, the law, in my view, recognises a
    right of a patient of sound understanding to be warned of material
    risks save in the exceptional circumstances to which I have
    referred. Accordingly, I would dismiss the appeal.

    LORD DIPLOCK

    My Lords,

    Such facts as emerged in evidence at the trial of the action
    that is the subject of this appeal have been set out by my noble
    and learned friend, Lord Scarman. They are characterised by their
    extreme paucity. We know nothing of the emotional idiosyncracies
    of the plaitiff, Mrs. Sidaway ("the patient"), even in ordinary
    health let alone under stress of ill-health and the prospects of
    waiting for surgical treatment at the hands of Mr. Falconer ("the
    neuro-surgeon"); and yet a doctor's duty of care, whether he be
    general practitioner or consulting surgeon or physician is owed to
    that patient and none other, idiosyncracies and all. Inevitably all
    treatment, medical or surgical, involves some degree of risk that
    the patient's condition will be worse rather than better for
    undergoing it. Statistically, the chances of any risk of the
    proposed treatment going awry at all may be small – but

    - 15 -

    particularly if surgery is involved (though this is by no means
    confined to surgery) it is never totally absent and the degree of
    possible worsening involved may cover a whole spectrum of
    disabilities from mild occasional discomfort to what might justify
    the epithet catastrophic. All these are matters which the doctor
    will have taken into consideration in determining, in the exercise
    of his professional skill and judgment, that it is in the patient's
    interest that he should take the risk involved and undergo the
    treatment recommended by the doctor.

    There is no evidence in the instant case that the patient
    asked the neuro-surgeon a single question about whether there
    were any risks involved in undergoing the operation that he was
    proposing for her, or if there were, what were the consequences of
    those risks or the chances of their occurring. So there are
    eliminated from our consideration matters of clinical judgment of
    the neuro-surgeon as to how to conduct a bilateral discussion with
    the patient in terms best calculated not to scare her off from
    undergoing an operation which, in the exercise of the paramount
    duty of care he owed to her individually to exercise his skill and
    judgment in endeavouring to heal her, he is satisfied that it is in
    her interests to undergo despite such risks as may be entailed.

    Likewise we do not know save in vaguest terms which
    amount to little more than speculation but which the trial judge
    was prepared to hold on balance of probabilities to be a fact,
    what risks the neuro-surgeon did mention to the patient. The risks
    which it is contended the neuro-surgeon ought to have drawn to
    the attention of the patient, even though unasked, were damage to
    the nerve roots and damage to the spinal cord. The occurrence of
    these were possible however skilfully the intended operation was
    carried out; and the consequences of such damage might cover a
    whole spectrum of mishaps ranging from localised numbness or pins
    and needles to, in the worst cases, some degree of paraplegia - as
    unfortunately happened in the patient's case. Because of the
    physical area of the body in which the operation takes place, these
    are closely related risks, one or other of which may occur. The
    combined chance of one or other occurring was put by the
    neurological experts at something below two per cent., of which
    injury to the spinal cord was rather more likely to have serious
    consequences if it were to happen, but the chances of its
    happening were was less than half the chance of damage to the
    nerve roots, i.e. less than one in a hundred.

    These two risks are specific to operations on the spinal
    column; but in addition there are involved the risks inherent in any
    general surgery especially if conducted under anaesthesia. As in
    the case of spinal column surgery, the consequences of these other
    risks may be minor and evanescent or may be gravely and
    permanently disabling or even result in death itself. I find it
    significant that no common law jurisdiction either American or
    Canadian which has espoused the doctrine of "informed consent"
    appears to have suggested that the surgeon was under a duty to
    warn his patient of such general risks which, rare though they may
    be, do happen and they are real risks.

    We are dealing in the present appeal with a patient who has
    expressed to the neuro-surgeon no anxiety about any risks of the
    proposed operation going wrong; and we are likewise confronted

    - 16 -

    with a neuro-surgeon whose practice, in the absence of specific
    questioning, was to mention to patients to whom he recommended
    such an operation for relief of pain as he was proposing to
    undertake on the patient in the instant case the risk of damage to
    the nerve roots with deleterious effect of varying degrees of
    discomfort or more serious disability, if the one in fifty chance
    occurred and despite the utmost operating skill something went
    wrong.

    What we do know, however, and this is in my view
    determinative of this appeal, is that all the expert witnesses
    specialising in neurology (including the patient's own expert
    witness, Mr. Uttley who would not himself have undertaken a
    similar operation without waiting a period of time, after October
    1974, to see what developed as to the persistence of the patient's
    pain) agreed that there was a responsible body of medical opinion
    which would have undertaken the operation at the time the neuro-
    surgeon did and would have warned the patient of the risk involved
    in the operation in substantially the same terms as the trial judge
    found on the balance of probabilities the neuro-surgeon had done,
    i.e. without specific reference to risk of injuring the spinal cord.

    My Lords, it is the very paucity of facts in evidence that
    makes it possible, in my view, to treat this appeal as raising a
    naked question of legal principle. It falls within a pattern of
    frequently occurring cases, which involve no consideration of the
    idiosyncracies of an exceptional patient. For the last quarter-of-a-
    century the test applied in English law as to whether a doctor has
    fulfilled his duty of care owed to his patient has been that set out
    in the summing-up to the jury by McNair J. in Bolam v. Friern
    Hospital Management Committee
    [1957] 1 W.L.R. 582. I will call
    this the Bolam test. At any rate so far as disgnosis and
    treatment is concered, the Bolam test has twice received the
    express approval of this House.

    The Bolam test is far from new, its value is that it brings
    up to date and re-expresses in the light of modern conditions in
    which the art of medicine is now practised, an ancient rule of
    common law. The original rule can be traced to the maxim
    spondet peritiam artis et imperitia culpae admuneratur. It goes
    back to the origin of assumpsit; it applied to all articifers and was
    firmly founded in "case" (moderniter negligence) although it may
    be of interest to note that as long ago as 1767 in Slater v. Baker
    2 Wils. 359, a suggestion that where injury was caused by surgery
    the form of action lay in trespass vi et armis was rejected with
    scant sympathy by the Court of King's Bench.

    The standard of skill and judgment in the particular area
    of the art of medicine in which the doctor practised that was
    called for by the expression peritia was the standard of ordinary
    skill and care that could be expected to be shown by a doctor who
    had successfully completed the training to qualify as a doctor,
    whether as general practitioner or as consultant in a speciality if
    he held himself out as practising as such, as the case might be.
    But unless the art in which the articifer claims to have acquired
    skill and judgment is stagnant so that no improvement in methods
    or knowledge is sought - and of few is this less true than
    medicine and surgery over the last half-century - advances in the
    ability to heal resulting from the volume of research, clinical as

    - 17 -

    well as technological, will present doctors with alternative
    treatments to adopt and a choice to select that treatment (it may
    be one of several) that is in their judgment likely at the time to
    prove most efficacious or ameliorating to the health of each
    particular patient committed to their care.

    Those members of the public who seek medical or surgical
    aid would be badly served by the adoption of any legal principle
    that would confine the doctor to some long-established, well-tried
    method of treatment only, although its past record of success
    might be small, if he wanted to be confident that he would not
    run the risk of being held liable in negligence simply because he
    tried some more modern treatment, and by some unavoidable
    mischance it failed to heal but did some harm to the patient.
    This would encourage "defensive medicine" with a vengeance. The
    merit of the Bolam test is that the criterion of the duty of care
    owed by a doctor to his patient is whether he has acted in
    accordance with a practice accepted as proper by a body of
    responsible and skilled medical opinion. There may be a number
    of different practices which satisfy this criterion at any particular
    time. These practices are likely to alter with advances in medical
    knowledge. Experience shows that, to the great benefit of human
    kind, they have done so, particularly in the recent past. That is
    why fatal diseases such as smallpox and tuberculosis have within
    living memory become virtually extinct in countries where modern
    medical care is generally available.

    In English jurisprudence the doctor's relationship with his
    patient which gives rise to the normal duty of care to exercise his
    skill and judgment to improve the patient's health in any particular
    respect in which the patient has sought his aid, has hitherto been
    treated as single comprehensive duty covering all the ways in
    which a doctor is called upon to exercise his skill and judgment in
    the improvement of the physical or mental condition of the patient
    for which his services either as a general practitioner or specialist
    have been engaged. This general duty is not subject to dissection
    into a number of component parts to which different criteria of
    what satisfy the duty of care apply, such as diagnosis, treatment,
    advice (including warning of any risks of something going wrong
    however skilfully the treatment advised is carried out.) The Bolam
    case itself embraced failure to advise the patient of the risk
    involved in the electric shock treatment as one of the allegations
    of negligence against the surgeon as well as negligence in the
    actual carrying out of treatment in which that risk did result in
    injury to the patient. The same criteria were applied to both
    these aspects of the surgeon's duty of care. In modern medicine
    and surgery such dissection of the various things a doctor has to
    do in the exercise of his whole duty of care owed to his patient is
    neither legally meaningful nor medically practicable. Diagnosis
    .itself may involve exploratory surgery, the insertion of drugs by
    'injection (or vaccination) involves intrusion upon the body of the
    patient and oral treatment by drugs although it involves no
    physical intrusion by the doctor on the patient's body may in the
    case of particular patients involve serious and unforeseen risks.

    My Lords, no convincing reason has in my view been
    advanced before your Lordships that would justify treating the
    Bolam test as doing anything less than laying down a principle of
    English law that is comprehensive and applicable to every aspect

    - 18 -

    of the duty of care owed by a doctor to his patient in the
    exercise of his healing functions as respects that patient. What
    your Lordships have been asked to do - and it is within your
    power to do so - is to substitute a new and different rule for that
    part only of the well established Bolam test as comprises a
    doctor's duty to advise and warn the patient of risks of something
    going wrong in the surgical or other treatment that he is
    recommending.

    The juristic basis of the proposed substitution which
    originates in certain state court jurisdictions of the United States
    of America and has found some favour in modified form by the
    Supreme Court of Canada, appears to me, with great respect, to
    be contrary to English law. Its foundation is the doctrine of
    "informed consent" which was originally based on the assumption
    made in U.S. Court of Appeals, District of Columbia Circuit, in
    Canterbury v. Spence (1972) 464 F. 2d 772, where the cynic might
    be forgiven for remarking it enabled a defence under the State
    Statute of Limitations to be outmanoeuvred, that, prima facie, the
    cause of action in a case of surgery was trespass to the person
    unless "informed consent" to the particular battery involved in the
    surgical operation could be proved. From a period long before
    American independence this, as I have pointed out, has never been
    so in English law. The relevant form of action has been based in
    negligence, i.e. in assumpsit, alone.

    The Supreme Court of Canada, after some initial
    vaccilation, rejected trespass to the person, i.e. battery, as the
    cause of action in cases of surgery but endeavoured to transfer
    the concept of "informed consent" to a patient's cause of action in
    negligence, into which, in my opinion, it simply cannot be made to
    fit. Consent to battery is a state of mind personal to the victim
    of the battery and any information required to make his consent
    qualify as informed must be relevant information either actually
    possessed by him or which he is estopped from denying he
    possessed, because he so acted towards the defendant as to lead to
    the latter reasonably to assume the relevant information was
    known to him. There is no room in the concept of informed
    consent for the "objective" patient (as he is referred to at one
    point by the Supreme Court of Canada) to whom the doctor is
    entitled, without making any inquiry whether it is the fact or not,
    to attribute knowledge of some risks but not of others. It may be
    that most patients, though not necessarily all, have a vague
    knowledge that there may be some risk in any form of medical
    treatment: but it is flying in the face of reality to assume that
    all patients from the highest to the lowest standard of education
    or intelligence are aware of the extent and nature of the risks
    which, notwithstanding the exercise of skill and care in carrying
    out the treatment, are inevitably involved in medical treatment of
    whatever kind it be but particularly surgical. Yet it is not merely
    conceded but specifically asserted in the Canadian cases that it is
    no part of the duty of care on the part of the doctor to go out
    of his way to draw the attention of his patient to these. On what
    logical or juristic basis can the need for informed consent be
    confined to some risks and not extended to others that are also
    real - and who decides which risk falls into which class?

    My Lords, I venture to think that in making this separation
    between that part of the doctor's duty of care that he owes to

    - 19 -

    each individual patient, which can be described as a duty to advise
    upon treatment and warn of its risks, the courts have misconceived
    their functions as the finders of fact in cases depending upon the
    negligent exercise of professional skill and judgment. 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 is no part of
    its task of evaluation to 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. But when it comes to
    warning about risks, the kind of training and experience that a
    judge will have undergone at the bar makes it natural for him to
    say (correctly) it is my right to decide whether any particular
    thing is done to my body, and I want to be fully informed of any
    risks there may be involved of which I am not already aware from
    my general knowledge as a highly educated man of experience, so
    that I may form my own judgment as to whether to refuse the
    advised treatment or not.

    No doubt if the patient in fact manifested this attitude by
    means of questioning, the doctor would tell him whatever it was
    the patient wanted to know; but we are concerned here with
    volunteering unsought information about risks of the proposed
    treatment failing to achieve the result sought or making the
    patient's physical or mental condition worse rather than better.
    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 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.

    I agree with your Lordships that this appeal should be
    dismissed.

    LORD KEITH OF KINKEL

    My Lords,

    I have had the advantage of reading in draft the speech to
    be delivered by my noble and learned friend, Lord Bridge of
    Harwich. I agree with it, and for the reason which he gives would
    dismiss the appeal.

    - 20 -

    LORD BRIDGE OF HARWICH
    My Lords,

    The facts giving rise to this appeal have been fully
    recounted by my noble and learned friend, Lord Scarman. I draw
    attention in briefest summary only to those which seem to me
    central to the issue of law arising for decision.

    The appellant underwent at the hospital for which the first
    respondents are the responsible authority an operation on her
    cervical vertebrae performed by a neuro-surgeon, since deceased,
    whose executors are the second respondents. The nature of the
    operation was such that, however skilfully performed, it involved a
    risk of damage to the nerve root at the site of the operation or
    to the spinal cord. The trial judge described that risk as "best
    expressed to a layman as a one to two per cent. risk of ill effects
    ranging from the mild to the catastrophic." The appellant in fact
    suffered, without negligence on the surgeon's part in the
    performance of the operation, a degree of damage to the spinal
    cord of which the effects, if not catastrophic, were certainly
    severe. Damages have been agreed, subject to liability, in the
    sum of £67,500.

    The appellant denied that she had seen the surgeon at all
    before the operation was performed. This evidence the judge
    rejected. He found that, before the appellant consented to
    undergo the operation, the surgeon explained the nature of the
    operation to her in simple terms and warned her of the possibility
    and likely consequences of damage to the nerve root, but did not
    refer to the risk of damage to the spinal cord. Most
    unfortunately, the surgeon who performed the operation died before
    these proceedings were instituted. Accordingly the trial judge, the
    Court of Appeal, and your Lordships' House have ail been denied
    the advantage of what would clearly have been vital evidence on
    the issue of liability, not only the surgeon's own account of
    precisely of what he had told this appellant, but also his
    explanation of the reasons for his clinical judgment that, in her
    case, the information he gave her about the operation and its
    attendant risks was appropriate and sufficient. The judge was thus
    driven to base the finding to which I have earlier referred in part
    on inference from documents, but mainly on the evidence of other
    doctors as to what they knew of the deceased surgeon's customary
    practice when discussing with patients an operation of the kind the
    appellant was to undergo. The result is that liability falls to be
    considered, in effect, in relation to that customary practice,
    independently of the vitally important individual doctor/patient
    relationship which must play so large a part in any discussion of a
    proposed operation with a patient. That introduces an element of
    artificiality into the case which we may deplore but cannot avoid.

    There was a difference of opinion between the neuro-
    surgeons called as expert witnesses as to whether they themselves
    would, in the circumstances, have warned the appellant specifically
    of the risk of damage to the spinal cord. But the one expert
    witness called for the appellant agreed readily and without
    reservation that the deceased surgeon, in omitting any such
    warning, would have been following a practice accepted as proper
    by a responsible body of competent neuro-surgeons.

    - 21 -

    Broadly, a doctor's professional functions may be divided
    into three phases: diagnosis, advice, and treatment. In performing
    his functions of diagnosis and treatment, the standard by which
    English law measures the doctor's duty of care to his patient is
    not open to doubt. "The test is the standard of the ordinary
    skilled man exercising and professing to have that special skill."
    These are the words of McNair J. in Bolam v. Friern Hospital
    Management Committee
    [1957] 1 W.L.R. 582, at p. 586, approved
    by this House in Whitehouse v. Jordan [1981] 1 WLR 246 (per
    Lord Edmund-Davies at p. 258) and in Maynard v. West Midland
    Regional Health Authority
    [1984] 1 W.L.R. 634 (per Lord Scarman
    at p. 638.) The test is conveniently referred to as the Bolam
    test. In Maynard's case, Lord Scarman, with whose speech the
    other four members of the Appellate Committee agreed, further
    cited with approval the words of Lord President Clyde in Hunter
    v. Hanley,
    1955 SLT 213, 217:

    "In the realm of diagnosis and treatment there is ample
    scope for genuine difference of opinion and one man clearly
    is not negligent merely because his conclusion differs from
    that of other professional men . . . The true test for
    establishing negligence in diagnosis or treatment on the part
    of a doctor is whether he has been proved to be guilty of
    such failure as no doctor of ordinary skill would be guilty of
    if acting with ordinary care . . ."

    The language of the Bolam test clearly requires a different degree
    of skill from a specialist in his own special field than from a
    general practitioner. In the field of neuro-surgery it would be
    necessary to substitute for Lord President Clyde's phrase "no
    doctor of ordinary skill," the phrase "no neuro-surgeon of ordinary
    skill." All this is elementary and, in the light of the two recent
    decisions of this House referred to, firmly established law.

    The important question which this appeal raises is whether
    the law imposes any, and if so what, different criterion as the
    measure of the medical man's duty of care to his patient when
    giving advice with respect to a proposed course of treatment. It
    is clearly right to recognise that a conscious adult patient of
    sound mind is entitled to decide for himself whether or not he will
    submit to a particular course of treatment proposed by the doctor,
    most significantly surgical treatment under general anaesthesia.
    This entitlement is the foundation of the doctrine of "informed
    consent" which has led in certain American jurisdictions to
    decisions, and in the Supreme Court of Canada, to dicta, on which
    the appellant relies, which would oust the Bolam test and
    substitute an "objective" test of a doctor's duty to advise the
    patient of the advantages and disadvantages of undergoing the
    treatment proposed and more particularly to advise the patient of
    the risks involved.

    There are, it appears to me, at least theoretically, two
    extreme positions which could be taken. It could be argued that,
    the patient's consent is to be fully informed, the doctor must
    specifically warn him of all risks involved in the treatment
    offered, unless he has some sound clinical reason not to do so.
    Logically, this would seem to be the extreme to which a truly
    objective criterion of the doctor's duty would lead. Yet this
    position finds no support from any authority, to which we have

    - 22 -

    been referred, in any jurisdiction. It seems to be generally
    accepted that there is no need to warn of the risks inherent in all
    surgery under general anaesthesia. This is variously explained on
    the ground that the patient may be expected to be aware of such
    risks or that they are relatively remote. If the law is to impose
    on the medical profession a duty to warn of risks to secure
    "informed consent" independently of accepted medical opinion of
    what is appropriate, neither of these explanations for confining the
    duty to special as opposed to general surgical risks seems to me
    wholly convincing.

    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 specifically asked by the
    patient. I cannot believe that contemporary medical opinion would
    support this view, which would effectively exclude the patient's
    right to decide in the very type of case where it is most
    important that he should be in a position to exercise that right
    and, perhaps even more significantly, to seek a second opinion as
    to whether he should submit himself to the significant risk which
    has been drawn to his attention. I should perhaps add at this
    point, although the issue does not strictly arise in this appeal,
    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 questioner requires.

    The decision mainly relied on to establish a criterion of the
    doctor's duty to disclose the risks inherent in a proposed treatment
    which is prescribed by the law and can be applied independently of
    any medical opinion or practice is that of the District of Columbia
    Circuit Court of Appeals in Canterbury v. Spence (1972) 464 F. 2d
    772. The judgment of the Court (Wright, Leventhal and Robinson
    JJ.), delivered by Robinson J., expounds the view that an objective
    criterion of what is a sufficient disclosure of risk is necessary to
    ensure that the patient is enabled to make an intelligent decision
    and cannot be left to be determined by the doctors. He said at
    p. 784:

    "Respect for the patient's right of self-determination on
    particular therapy demands a standard set by law for
    physicians rather than one which physicians may or may not
    impose upon themselves."

    In an attempt to define the objective criterion it is said at
    p. 787 that "the issue on non-disclosure must be approached from
    the viewpoint of the reasonableness of the physician's divulgence in
    terms of what he knows or should know to be the patient's
    informational needs." A risk is required to be disclosed "when a
    reasonable person, in what the physician knows or should know to
    be the patient's position, would be likely to attach significance to
    the risk or cluster of risks in deciding whether or not to forego
    the proposed therapy": (1972) 464 F. 2d 772; 787. The judgment
    adds at p. 788: "Whenever non-disclosure of particular risk
    information is open to debate by reasonable-minded men, the issue
    is for the finder of facts."

    - 23 -

    The court naturally recognises exceptions from the duty laid
    down in the case of an unconscious patient, an immediate
    emergency, or a case where the doctor can establish that
    disclosure would be harmful to the patient.

    Expert medical evidence will be needed to indicate the
    nature and extent of the risks and benefits involved in the
    treatment (and presumably of any alternative course.) But the
    court affirms at p. 792: "Experts are unnecessary to a showing of
    the materiality of a risk to a patient's decision on treatment, or
    to the reasonably, expectable effect of risk disclosure on the
    decision." In English law, if this doctrine were adopted, expert
    medical opinion as to whether a particular risk should or should
    not have been disclosed would presumably be inadmissible in
    evidence.

    I recognise the logical force of the Canterbury doctrine,
    proceeding from the premise that the patient's right to make his
    own decision must at ail costs be safeguarded against the kind of
    medical paternalism which assumes that "doctor knows best." But,
    with all respect, I regard the doctrine as quite impractical in
    application for three principal reasons. First, it gives insufficient
    weight to the realities of the doctor/patient relationship. A very
    wide variety of factors must enter into a doctor's clinical
    judgment not only as to what treatment is appropriate for a
    particular patient, but also as to how best to communicate to the
    patient the significant factors necessary to enable the patient to
    make an informed decision whether to undergo the treatment. The
    doctor cannot set out to 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 the very
    fact of his volunteering, without being asked, information of some
    remote risk involved in the treatment proposed, even though he
    describes it as remote, may lead to that risk assuming an undue
    significance in the patient's calculations. Secondly, it would seem
    to me quite unrealistic in any medical negligence action to confine
    the expert medical evidence to an explanation of the primary
    medical factors involved and to deny the court the benefit of
    evidence of medical opinion and practice on the particular issue of
    disclosure which is under consideration. Thirdly, the objective test
    which Canterbury propounds seems to me to be so imprecise as to
    be almost meaningless. If it is to be left to individual judges to
    decide for themselves what "a reasonable person in the patient's
    position" would consider a risk of sufficient significance that he
    should be told about it, the outcome of litigation in this field is
    likely to be quite unpredictable.

    I note with interest from a learned article entitled Informed
    Consent to Medical Treatment
    by Mr. Gerald Robertson, Lecturer
    in Law, University of Leicester, (1981) 97 L.Q.R. 102, 108, that
    only a minority of states in the United States of America have
    chosen to follow Canterbury and that since 1975 "there has been a
    growing tendency for individual states to enact legislation which
    severely curtails the operation of the doctrine of informed
    consent." I should also add that I find particularly cogent and
    convincing the reasons given for declining to follow Canterbury by
    the Supreme Court of Virginia in Bly v. Rhoads (1976) 222 S.E. 2d
    783.

    - 24 -

    Having rejected the Canterbury doctrine as a solution to the
    problem of safeguarding the patient's right to decide whether he
    will undergo a particular treatment advised by his doctor, the
    question remains whether that right is sufficiently safeguarded by
    the application of the Bolam test without qualification to the
    determination of the question what risks inherent in a proposed
    treatment should be disclosed. The case against a simple
    application of the Bolam test is cogently stated by Laskin C.J.C.,
    giving the judgment of the Supreme Court of Canada in Reibl v.
    Hughes
    (1980) 114 D.L.R. (3d) 1; 13:

    "To allow expert medical evidence to determine what risks
    are material and, hence, should be disclosed and,
    correlatively, what risks are not material is to hand over to
    the medical profession the entire question of the scope of
    the duty of disclosure, including the question whether there
    has been a breach of that duty. Expert medical evidence
    is, of course, relevant to findings as to the risks that reside
    in or are a result of recommended surgery or other
    treatment. It will also have a bearing on their materiality
    but this is not a question that is to be concluded on the
    basis of the expert medical evidence alone. The issue under
    consideration is a different issue from that involved where
    the question is whether the doctor carried out his
    professional activities by applicable professional standards.
    What is under consideration here is the patient's right to
    know what risks are involved in undergoing or foregoing
    certain surgery or other treatment."

    I fully appreciate the force of this reasoning, but can only accept
    it subject to the important qualification that a decision what
    degree of disclosure of risks is best calculated to assist a
    particular patient to make a rational choice as to whether or not
    to undergo a particular treatment must primarily be a matter of
    clinical judgement. It would follow from this that the issue
    whether non-disclosure in a particular case should be condemned as
    a breach of the doctor's duty of care is an issue to be decided
    primarily on the basis of expert medical evidence, applying the
    Bolam test. But I do not see that this approach involves the
    necessity "to hand over to the medical profession the entire
    question of the scope of the duty of disclosure, including the
    question whether there has been a breach of that duty." Of
    course, if there is a conflict of evidence as to whether a
    responsible body of medical opinion approves of non-disclosure in a
    particular case, the judge will have to resolve that conflict. But
    even in a case where, as here, no expert witness in the relevant
    medical field condemns the non-disclosure as being in conflict with
    accepted and responsible medical practice, I am of 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. The kind of case I
    have in mind would be an operation involving a substantial risk of
    grave adverse consequences, as, for example, the ten per cent. risk
    of a stroke from the operation which was the subject of the
    Canadian case of Reibl v. Hughes (1980) 114 D.L.R. (3d) 1. In
    such a case, in the absence of some cogent clinical reason why
    the patient should not be informed, a doctor, recognising and
    respecting his patient's right of decision, could hardly fail to
    appreciate the necessity for an appropriate warning.

    - 25 -

    In the instant case I can see no reasonable ground on which
    the judge could properly reject the conclusion to which the
    unchallenged medical evidence led in the application of the Bolam
    test. The trial judge's assessment of the risk at one to two per
    cent. covered both nerve root and spinal cord damage and covered
    a spectrum of possible ill effects "ranging from the mild to the
    catastrophic." In so far as it is possible and appropriate to
    measure such risks in percentage terms - some of the expert
    medical witnesses called expressed a marked and understandable
    reluctance to do so - the risk of damage to the spinal cord of
    such severity as the appellant in fact suffered was, it would
    appear, certainly less than one per cent. But there is no yardstick
    either in the judge's findings or in the evidence to measure what
    fraction of one per cent. that risk represented. In these
    circumstances, the appellant's expert witness's agreement that the
    non-disclosure complained of accorded with a practice accepted as
    proper by a responsible body of neuro-surgical opinion afforded the
    respondents a complete defence to the appellant's claim.

    I would dismiss the appeal.

    LORD TEMPLEMAN

    My Lords,

    The appellant patient Mrs. Sidaway claims £67,500 damages
    against the estate of the deceased neuro-surgeon Mr. Murray A.
    Falconer for his failure to warn her of the risk that the operation
    which he recommended and performed with the consent of Mrs.
    Sidaway might cause the damage to her spinal cord which in fact
    occurred and the disability from which she is now suffering.

    Between 1958 and 1960 Mrs. Sidaway suffered pain as a
    result of deformity in the region of her fifth and sixth cervicle
    vertebrae. Conservative treatment, including collar, traction and
    manipulation failed to effect a cure. In 1960 Mr. Falconer
    removed the disc between the affected vertebrae and fused them
    with a bone graft. After some time the pain disappeared. Mrs.
    Sidaway's condition was reviewed annually until 1970 and in 1973
    Mr. Falconer's secretary wrote to Mrs. Sidaway enquiring after her
    health. The evidence is that Mr. Falconer was experienced,
    competent, conscientious and considerate in his practice and in his
    attitude to his patients including Mrs. Sidaway. In 1973 Mrs.
    Sidaway complained again of persistent pain. She was examined by
    Mr. Falconer, went into hospital on 11 October, and was operated
    upon by Mr. Falconer on 29 October. Mr. Falconer has since died.
    Mrs. Sidaway said that during her 18 days in hospital prior to the
    operation Mr. Falconer did not examine or speak to her. The trial
    judge rightly assumed that Mrs. Sidaway's recollection was
    understandably at fault and that she was seen and advised by Mr.
    Falconer.

    Mrs. Sidaway was suffering increasing pain as a result of
    pressure on the fourth cervicle nerve root. The operation proposed
    and carried out by Mr. Falconer required the excision of part of a

    - 26 -

    vertebra in order to obtain access to the channel through which
    the affected nerve travelled. This would enable the removal of
    boney excrescencies from the fourth vertebra and the freeing of
    the nerve within its channel by the use of a dental drill. The
    operation involved working within three millimetres of the spinal
    cord, exposing the cord and interfering with the nerve root

    Basing himself on evidence of the usual practice of Mr.
    Falconer and apparently assuming that Mr. Falconer's explanation
    to every patient followed the same practice, the trial judge,
    without the benefit of any direct evidence from Mr. Falconer or
    Mrs. Sidaway, made the confident finding that Mr. Falconer
    probably explained the nature of the operation to Mrs. Sidaway in
    simple terms and the reasons for performing the operation and
    mentioned the possibility of damage to a nerve root and the
    consequences of doing so but the judge was "satisfied that he did
    not refer to the danger of cord damage or to the fact that this
    was an operation of choice rather than necessity." The judge was
    also satisfied that "even if the surgeon exercised proper care and
    skill, the spinal cord might be damaged causing weakness or
    paralysis . . . and that the nerve root might be damaged causing
    pain and/or weakness . . ." Mrs. Sidaway's spinal cord was in fact
    damaged inadvertently without negligence on the part of Mr.
    Falconer, the performer of the operation.

    In my opinion a simple and general explanation of the
    nature of the operation should have been sufficient to alert Mrs.
    Sidaway to the fact that a major operation was to be performed
    and to the possibility that something might go wrong at or near
    the site of the spinal cord or the site of the nerve root causing
    serious injury. If, as the judge held, Mr. Falconer probably
    referred expressly to the possibility of damage to a nerve root and
    to the consequences of such damage, this warning could only have
    reinforced the possibility of something going wrong in the course
    of a delicate operation performed in a vital area with resultant
    damage. In view of the fact that Mr, Falconer recommended the
    operation, Mrs. Sidaway must have been told or could have
    assumed that Mr. Falconer considered that the possibilities of
    damage were sufficiently remote to be ignored. Mrs. Sidaway
    could have asked questions. If she had done so, she could and
    should have been informed that there was an aggregrate risk of
    between one per cent. and two per cent. risk of some damage
    either to the spinal cord or to a nerve root resulting in injury
    which might vary from irritation to paralysis. But to my mind
    this further information would only have reinforced the obvious,
    with the assurance that the maximum risk of damage, slight or
    serious, did not exceed two per cent. Mr. Falconer may
    reasonably have taken the view that Mrs. Sidaway might be
    confused, frightened or misled by more detailed information which
    she was unable to evaluate at a time when she was suffering from
    stress, pain and anxiety. A patient may prefer that the doctor
    should not thrust too much detail at the patient. We do not know
    how Mr. Falconer explained the operation to Mrs. Sidaway and we
    do not know the reasons for the terms in which he couched his
    explanation.

    On the assumption that Mr. Falconer explained that it was
    necessary to remove bone and free a nerve root from pressure
    near the spinal cord, it seems to me that the possibility of

    - 27 -

    damage to a nerve root or to the spinal cord was obvious. The
    operation was skilfully performed but by mishap the remote risk of
    damage to the spinal cord unfortunately caused the disability from
    which Mrs. Sidaway is now suffering. However much sympathy
    may be felt for Mrs. Sidaway and however much in hindsight the
    operation may be regretted by her, the question now is whether
    Mr. Falconer was negligent in the explanation which he gave.

    In my opinion if a patient knows that a major operation
    may entail serious consequences, the patient cannot complain of
    lack of information unless the patient asks in vain for more
    information or unless there is some danger which by its nature or
    magnitude or for some other reason requires to be separately
    taken into account by the patient in order to reach a balanced
    judgment in deciding whether or not to submit to the operation.
    To make Mr. Falconer liable for damages for negligence, in not
    expressly drawing Mrs. Sidaway's attention to the risk of damage
    to the spinal cord and its consequences, Mrs. Sidaway must show
    and fails to show that Mr. Falconer was not entitled to assume, in
    the absence of questions from Mrs. Sidaway, that his explanation
    of the nature of the operation was sufficient to alert Mrs. Sidaway
    to the general danger of unavoidable and serious damage inherent
    in the operation but sufficiently remote to justify the operation.
    There is no reason to think that Mr. Falconer was aware that, as
    Mrs. Sidaway deposed, a specific warning and assessment of the
    risk of spinal cord damage would have influenced Mrs. Sidaway to
    decline the operation although the general explanation which she
    was given resulted in her consenting to the operation.

    There is no doubt that a doctor ought to draw the attention
    of a patient to a danger which may be special in kind or
    magnitude or special to the patient. In Reibl v. Hughes (1980) 114
    D.L.R (3d) 1, a surgeon advised an operation on the brain to avoid
    a threatened stroke. The surgeon knew or ought to have known
    that there was a four per cent. chance that the operation might
    cause death and a ten per cent. chance that the operation might
    precipitate the very stroke which the operation was designed to
    prevent. The patient ought to have been informed of these
    specific risks in order to be able to form a balanced judgment in
    deciding whether or not to submit to the operation.

    When a patient complains of lack of information, the court
    must decide whether the patient has suffered harm from a general
    danger inherent in the operation or from some special danger. In
    the case of a general danger the court must decide whether the
    information afforded to the patient was sufficient to alert the
    patient to the possibility of serious harm of the kind in fact
    suffered. If the practice of the medical profession is to make
    express mention of a particular kind of danger, the court will have
    no difficulty in coming to the conclusion that the doctor ought to
    have referred expressly to this danger as a special danger unless
    the doctor can give reasons to justify the form or absence of
    warning adopted by him. Where the practice of the medical
    profession is divided or does not include express mention, it will
    be for the court to determine whether the harm suffered is an
    example of a general danger inherent in the nature of the
    operation and if so whether the explanation afforded to the patient
    was sufficient to alert the patient to the general dangers of which
    the harm suffered is an example. If a doctor conscientiously

    - 28 -

    endeavours to explain the arguments for and against a major
    operation and the possibilities of benefiting and the dangers, the
    court will be slow to conclude that the doctor has been guilty of
    a breach of duty owed to the patient merely because the doctor
    omits some specific item of information. It is for the court to
    decide, after hearing the doctor's explanation, whether the doctor
    has in fact been guilty of a breach of duty with regard to
    information.

    A doctor offers a patient diagnosis, advice and treatment.
    The objectives, sometimes conflicting, sometimes unattainable, of
    the doctor's services are the prolongation of life, the restoration
    of the patient to full physical and mental health and the
    alleviation of pain. Where there are dangers that treatment may
    produce results, direct or indirect, which are harmful to the
    patient, those dangers must be weighed by the doctor before he
    recommends the treatment. The patient is entitled to consider
    and reject the recommended treatment and for that purpose to
    understand the doctor's advice and the possibility of harm resulting
    from the treatment.

    I do not subscribe to the theory that the patient is entitled
    to know everything nor to the theory that the doctor is entitled to
    decide everything. The relationship between doctor and patient is
    contractual in origin, the doctor performing services in
    consideration for fees payable by the patient. The doctor,
    obedient to the high standards set by the medical profession
    impliedly contracts to act at all times in the best interests of the
    patient. No doctor in his senses would impliedly contract at the
    same time to give to the patient all the information available to
    the doctor as a result of the doctor's training and experience and
    as a result of the doctor's diagnosis of the patient. An obligation
    to give a patient all the information available to the doctor would
    often be inconsistent with the doctor's contractual obligation to
    have regard to the patient's best interests. Some information
    might confuse, other information might alarm a particular patient.
    Whenever the occasion arises for the doctor to tell the patient the
    results of the doctor's diagnosis, the possible methods of treatment
    and the advantages and disadvantages of the recommended
    treatment, the doctor must decide in the light of his training and
    experience and in the light of his knowledge of the patient what
    should be said and how it should be said. At the same time the
    doctor is not entitled to make the final decision with regard to
    treatment which may have disadvantages or dangers. Where the
    patient's health and future are at stake, the patient must make
    the final decision. The patient is free to decide whether or not
    to submit to treatment recommended by the doctor and therefore
    the doctor impliedly contracts to provide information which is
    adequate to enable the patient to reach a balanced judgment,
    subject always to the doctor's own obligation to say and do
    nothing which the doctor is satisfied will be harmful to the
    patient. When the doctor himself is considering the possibility of
    a major operation the doctor is able, with his medical training,
    with his knowledge of the patient's medical history and with his
    objective position to make a balanced judgment as to whether the
    operation should be performed or not. If the doctor making a
    balanced judgment advises the patient to submit to the operation,
    the patient is entitled to reject that advice for reasons which are
    rational, or irrational, or for no reason. The duty of the doctor in

    - 29 -

    these circumstances, subject to his overriding duty to have regard
    to the best interests of the patient, is to provide the patient with
    information which will enable the patient to make a balanced
    judgment if the patient chooses to make a balanced judgment. A
    patient may make an unbalanced judgment because he is deprived
    of adequate information. A patient may also make an unbalanced
    judgment if he is provided with too much information and is made
    aware of possibilities which he is not capable of assessing because
    of his lack of medical training, his prejudices or his personality.
    Thus the provision of too much information may prejudice the
    attainment of the objective of restoring the patient's health. The
    obligation of the doctor to have regard to the best interests of
    the patient but at the same time to make available to the patient
    sufficient information to enable the patient to reach a balanced
    judgment if he chooses to do so has not altered because those
    obligations have ceased or may have ceased to be contractual and
    become a matter of duty or care. In order to make a balanced
    judgment if he chooses to do so, the patient needs to be aware of
    the general dangers and of any special dangers in each case
    without exaggeration or concealment. At the end of the day, the
    doctor, bearing in mind the best interests of the patient and
    bearing in mind the patient's right to information which will
    enable the patient to make a balanced judgment must decide what
    information should be given to the patient and in what terms that
    information should be couched. The court will award damages
    against the doctor if the court is satisfied that the doctor
    blundered and that the patient was deprived of information which
    was necessary for the purposes I have outlined. In the present
    case on the judge's findings I am satisfied that adequate
    information was made available to Mrs. Sidaway and that the
    appeal should therefore be dismissed.

    - 30 -


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1985/1.html