#5417 - Informed Consent To Medical Treatment - Irish Tort Law

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.

Issue

• Duty to Disclose – Scope of duty

Judgment

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)

Facts

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.

Issue

• Duty of disclosure – scope of duty

Judgment

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)

Reibl v Hughes (Can SC 1980)

Facts

1. The plaintiff was advised by his doctor to have removed a build up of plaque from an artery which had a 10% chance of causing a stroke.

2. The doctor did not warn him that there was a danger that he would suffer a stroke during surgery.

3. The plaintiff did suffer a stroke and was paralysed.

Issue

• Duty of disclosure – Scope of duty to disclose

Judgment (Laskin CJC)

• A surgeon is under an obligation to make disclosures of all material risks attending the recommended surgery.

• Whether a risk is material must be assessed on the grounds of both probability and gravity.

• A reasonable person in the plaintiff's position would have declined surgery as he would have waited a year and a half for his pension to vest before taking the surgery.

• The doctor did not make sufficient disclosures in light of the fact that he disclosed no more to the patient than he would be better off to have the surgery.

Farrell v Varian (HC 1994)

Facts

1. The plaintiff had an operation to cure a hand condition.

2. The operation resulted in chronic pain of the arm and shoulder.

3. The defendant had informed the patient of the nature of his condition, that surgery was the appropriate remedy, the cause of the condition was unknown and there was no guarantee of success and there was a significant chance of recurrence.

Issue

• Duty of disclosure – Scope of duty

Judgment (O'Hanlon J)

• If there was a significant danger of serious consequence, then the patient is entitled to be warned, unless there is a cogent medical reason not to warn.

  • However in this case the condition was of a severity that occurred in less than 1% of cases.

• The decision as to whether information should be disclosed is primarily a decision for a medical professional to make, as they are best placed to appreciate what information is necessary to allow a patient to make a rational decision as to whether to undergo surgery.

• The court is still entitled to conclude that disclosure of particular risk is so obvious that no prudent medical man could fail to make it.

• In this case the defendant met all his obigations to disclose.

Bolton v Blackrock Clinic (HC 1994, SC 1997)

Facts

1. The plaintiff had undergone bronchial and lung surgery twice and suffered permanent and serious injury as a result.

2. She claimed that the surgeon had failed to obtain her informed consent for one of the procedures he carried out.

Issue

• Duty of Disclosure – Scope of duty

High Court Judgment (Geoghegan J)

• The approach of O'Flaherty J from Walsh should be followed i.e. informed consent should be decided by the court on straightforward negligence principles.

• The test is whether the doctor disclosed all the material risks

• In this case the disclosure had been described by witnesses as superb and represented an exercise of reasonable care on the part of the surgeon.

Supreme Court (Hamilton CJ)

• The Dunne test is to be favoured for informed consent.

• On this ground the plaintiff fails.

• No mention was made of the O'Flaherty J approach.

Geoghegan v Harris (HC 2000)

Facts

1. The plaintiff underwent surgery for dental implants which resulted in chronic pain.

Issue

• Duty of Disclosure – Scope of Duty – Causation

Judgment (Kearns J)

• As far as it relates to this case Walsh set out two principles.

  • A practitioner has a duty to warn of any material risk which is a known complication of the procedure to be carried out.

  • In elective surgery, a material risk is any risk, no matter how remote, of grave consequences involving severe pain for an appreciable length of time into the future.

• Thus in ascertaining negligence the court must ask

  • was the complaint a known consequence?

    • yes

  • was there a duty to warn despite the remoteness of the risk and the contrary views of the medical...