This is an extract of our Informed Consent To Medical Treatment document, which we sell as part of our Irish Tort Law Notes collection written by the top tier of Trinity College Dublin students.
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Informed Consent to Medical Treatment
Sidaway v Bethlehem Royal Hospital (HoL 1984) Facts
1. The plaintiff underwent an operation where there was a small risk of damage to the spinal cord.
2. The damage occurred and she was consequently disabled.
3. The doctor had not informed her of the risk of spinal cord injury, following a general and approved practise. IssueDuty to Disclose - Scope of duty
1. Lord Scarman (concurring)
? The doctor must warn a patient as to whether the treatment s/he is undergoing has an inherent material risk.
? A material one is one which a reasonable person in the plaintiff's position would be likely attach significance to in the circumstances.
? Even if the risk is material, the doctor will not be held liable where he believes that the warning would be detrimental to the patient's health.
? It is for the appellant to establish whether the risk was a material one.
# She failed to do so in this case, defendants can not be held negligent.
2. Lord Diplock (concurring)
? The normal test of professional negligence should be applied in this case.
? This is because all that a warning can serve to do is to deter the patient from surgery, which in the doctor's professional opinion s/he ought to undergo.
3. Lord Keith of Kinkel (concurring - agreed with Lord Bridge)
4. Lord Bridge of Harwich (concurring)
? There are two possible extremes to which the law can stretch
# a duty to warn of all risks: some risks are too general, others too remote
# a duty only to answer questions specifically asked by the plaintiff: not supported by medical opinion, precludes the plaintiff's right to choose and seek a second opinion
? dictum where the plaintiff asks a specific question the doctor must answer truthfully.
? The test of a reasonable person in the plaintiff's position isn't practical
# Ignores the doctor/patient relationship, the doctor must have discretion as to how best to communicate with the plaintiff
# It is too vague and would give rise to unpredictable litigation
# It doesn't allow the court to take account of the general medical practice on the issue.
? The test should be the normal test of medical negligence, with the proviso that the judge may make a finding of negligence in the absence of the support of medical opinion, where there is a substantial risk of grave adverse consequences, such that no prudent medical man would fail to make a disclosure of it.
? This accorded with medical opinion, and no evidence was adduced as to precisely how substantial the risk was.
5. Lord Templeman (concurring)
? If a patient knows that there is a major operation entailing serious consequences, they cannot complain of lack of information except where they specifically ask for more information and are refused.
? The doctor must however warn of danger that is special in kind or magnitude or special to the patient.
? General danger, special danger dichotomy - general danger the court must ask if the patient has been informed sufficiently to be alerted to kind of harm suffered.
In the case of a special danger, general and approved practise must be followed or the doctor have sufficient excusing reasons. Walsh v Family Planning Services (SC 1992)
1. The plaintiff underwent a vasectomy and suffered a rare and extremely painful condition arising out of it.
2. He had not been informed of the possibility of this occuring and sued for negligence, assault and battery. IssueDuty of disclosure - scope of duty
1. Finlay CJ (concurring)
? The standard of care to be expected to be exercised by a doctor in giving advice is the same as that to be exercised in giving diagnosis and treatment.
# Thus if the doctor was following a general practice without inherent defects which ought to be obvious to any man giving the matter due consideration, he will not be negligent.
# The court may more readily identify inherent defects in a practise of failing to disclose the consequences of a purely elective surgery, than one where the patients life was in danger.
? The condition was not a known consequence of a carefully carried out vasectomy, thus the doctor was not under a duty to warn about it.
? The fact that the plaintiff was operated on by a doctor to whose intervention he had not expressly consented did not render this intervention an assault.
? Where an inadequate warning has been rendered, the proper action is negligence not assault (concurred with O'Flaherty J)
2. Hederman J (concurring - agreed with O'Flaherty J)
3. McCarthy J (dissenting)
? In a surgery such as this (to improve sexual capacity) the patient must be supplied with the material facts.
? The defendants were under a duty to disclose all attendant risks.
? There was a warning of pain for an indefinite period of time, but not of the consequences as regard sex life, thus negligence was established.
? The intervention by a doctor that the plaintiff has not consented to constituted an assault.
# However as this assault was merely technical in nature, only nominal damages should be awarded.
4. O'Flaherty J (concurring)
? The approach in Reibl should be followed and the ordinary principles of negligence applied.
? Where a patient is undergoing elective surgery that is not essential to health or bodily well being, then there is a duty on the doctor to warn to explain in the clearest possible language, any grave consequences involving severe pain stretching out for a considerable length of time, no matter how remote or exceptional the consequences are.
? However the problems arising in the current patient was unique and the warning given to him was sufficient in the light of prevailing medical knowledge and experience.
5. Egan J (dissenting)
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