Sidaway – the UK law pre-Montgomery

A series of posts on patient consent – (3) [<< Previous]

Introduction

Cases prior to Sidaway

Following the decision in Bolam v Friern Hospital Management Committee [2] the so called Bolam test was the test applied to the doctor’s duty to disclose information to patients. In Scotland the Hunter v Hanley [3] test applied and both tests permitted the medical profession to decide what information a patient could receive about options for treatment and the risks and benefits of those options. Information delivery to patients was filtered by the practice of the profession.
One of the aspects of the claimant’s case in Bolam was that he had not been informed about the risks involved in E.C.T treatment. The argument was not formulated on the basis that he should have been advised of the risks and benefits of the alternative methods of conducting the treatment, simply that he should have been advised of the risks of the treatment against no treatment.
In the direction to the jury there was no focus on the fact that he should have the option to choose whether restraints or drugs were used during the treatment having been appropriately informed by the doctor [4].
Following Bolam and prior to the decision in Sidaway [5] there had been a number of first-instance decisions that had addressed the issue of a doctor’s duty to provide information to their patients and the Bolam test was applied to consent cases in the UK [6].
During this period the courts in the UK were content to permit the medical profession through the evidence of expert witnesses on professional practice to dictate what information patients were entitled to receive.
The focus was not on the rights of the patient and the disclosure of risks inherent in a proposed treatment was seen as a product of the doctor’s duty of care rather than as a product of the patient’s right to self-determination.
Finally in 1985 the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital [7] were able to consider the approach to be applied in the UK where there was a failure to advise a patient of the risks involved in a particular treatment.
Sidaway was the first real opportunity for a UK court to formulate a test for information disclosure to patients that recognised their right to self-determination in the context of decisions about their medical treatment. The case set the standard for information disclosure to patients in the UK until the Supreme Court decision in Montgomery [8].
Sidaway continues to be relevant as the Supreme Court embraced the speech of Lord Scarman as part of the test to be applied post Montgomery. However, the UK test is not restricted to the view of Lord Scarman. The Supreme Court said that the test was substantially that adopted by Lord Scarman but it was subject to the refinement made in the Australian case of Rogers v Whitaker.

“The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker”

Sidaway – The Facts

The claimant Amy Doris Sidaway suffered from persistent pain in her neck, right shoulder and arm and she was advised to undergo an operation. Surgery was performed by a senior neurosurgeon who was deceased by the time of the trial.

The court found that the surgeon did warn the claimant about the possibility of disturbing a nerve root and the consequences of this occurring but did not warn her of the risk of damage to the spinal cord despite the fact that the operation would of necessity require to be conducted within millimetres of the spinal cord.
The case brought by the claimant relied solely upon the failure to disclose and explain to her the risks inherent in, or special to the surgery proposed. At the time a responsible body of medical opinion would not have advised patients of the risk of damage to the spinal cord and the Bolam test was satisfied.
It was contended that had the claimant been appropriately warned about the possibility of damage to the spinal cord she would not have gone ahead with the surgery.
During the course of the procedure the spinal cord was damaged and the claimant suffered partial paralysis. She underwent a procedure to obtain relief from pain and ended up severely disabled.

Sidaway – The Trial

At the trial the judge found that the surgeon did not tell the claimant it was an operation of choice rather than of necessity and although he had discussed the possibility of disturbing a nerve root and the consequences thereof he had not discussed the possibility of damaging the spinal cord.
The trial judge recognised that the risk of adverse consequences ranged from the mild to the catastrophic and said:

“the operation carried an inherent risk that, even if the surgeon exercised proper care and skill, the spinal cord might be damaged causing weakness or paralysis from the C4/5 level and the nerve root might also be damaged causing pain and/or weakness along the path of the nerve. The risk was a material one, best expressed to a layman as a one to two per cent.”

In discussing risks the surgeon followed a practice which in 1974 was accepted as proper by a reasonable body of neurosurgeons. The trial judge applied the Bolam test and found there was no negligence. He did find that if there had been a proper discussion the claimant would not have gone ahead with surgery. He declined to redefine or develop the law along the lines which appealed to the Supreme Court in Canada in Reibl v Hughes.[10]

Sidaway in the Appeal Court

The appeal was heard by Sir John Donaldson MR, Dunn and Browne-Wilkinson L.JJ. and the claimant failed [11]. The court did consider the leading authority of Canterbury v Spence [12] and the Canadian cases of Hopp v Lepp [13] and Reibl v Hughes [14] which were also referred to in the Supreme Court in Montgomery.
The claimant argued as was later done in Montgomery that disclosure of information was not an exercise of technical or professional expertise by the doctor and was distinct from diagnosis and treatment and so should be treated differently in law.
It was found that the law in relation to matters of diagnosis and treatment was governed by the Bolam test and since the surgeon had acted in accordance with a practice adopted by a body of responsible opinion he was not negligent. The court said that the “American formulation of the duty” by reference to the “prudent patient test” with reference to  Canterbury v Spence [15] was rejected.
However, it was recognised even at this stage that in the appropriate case a judge would be entitled to reject a unanimous view that there was no duty to disclose if he was satisfied it was manifestly wrong and that the doctors had been misdirecting themselves as to their duty in law.
The duty was fulfilled if the doctor acted in accordance with a practice “rightly” accepted as proper by a body of skilled men. This appeared to permit the court to engage in the information disclosure case in an analysis of the practice as was subsequently argued in relation to the Bolam test in  Bolitho [16]
The court appeared to consider that recognition of the right of patients to make decisions about their medical care would be damaging to the relationship between doctors and their patients, and might also have an adverse effect on the practice of medicine. This appears to be a view that is still maintained by some despite the GMC Guidance on consent and the decision in Montgomery.

“The principal effect of accepting the proposition advanced by the plaintiff would be likely to be an increase in the number of claims for professional negligence against doctors. This would be likely to have an adverse effect on the general standard of medical care, since doctors would inevitably be concerned to safeguard themselves against such claims, rather than to concentrate on their primary duty of treating their patients.” [17]

Lord Browne-Wilkinson seemed to be concerned that introducing a patient focused test would not only affect the doctor/patient relationship but lead to more legal claims:

“If the disclosure of the risks results in prejudicing the ability of the doctor to cure and the confidence of the patient in the doctor, the existence of a duty to disclose such risks would positively militate against the main purpose of the relationship, a factor not present in relation to disclosure of risks by any other professional adviser.”[18]

“In particular I have been very conscious of the need to ensure that the duty of care imposed by the law is not such as to inhibit the proper function of the medical profession in caring for the sick by exposing doctors to the threat of legal proceedings in which their actions will be judged with hindsight, not by reference to the standards of those skilled in the art, but by judges or juries. It is for this reason that I am not prepared to adopt the much stricter rules as to disclosure laid down in the transatlantic cases which involve an objective judgment both as to the materiality of the risk and the adequacy of the disclosure. It is common knowledge that such rules have led to a large number of claims against doctors based on failure to warn; in consequence, a number of states in the U.S.A. have introduced legislation to modify the doctrine of informed consent.” [19].

Sidaway in the House of Lords

The claimant appealed and in the House of Lords there was no consistency of approach [20]. Lord Diplock was perhaps the most paternalistic and was in favour of the application of the Bolam test.
He did not consider that the duty to inform was a separate duty but part of the overarching duty of care owed by the doctor to the patient. He felt that if doctors chose to withhold information it was not for the courts to gainsay them. On his analysis, if the patient has any right at all it is the right to be treated as the doctor thinks best.
He did however acknowledge that if the patient manifested an attitude by means of questioning that suggested they wished information it would be the duty of the doctor to answer truthfully. In doing so he appears to endorse a situation whereby the patient who asks questions is entitled to more information than the patient who does not.
Lord Bridge of Harwich went further than a simple Bolam approach and appeared to recognise the force of the North American cases particularly Canterbury v Spence [21]and Reibl v Hughes [22]. He considered that one of the best known statements of patient rights by Laskin CJC in Reibl v Hughes was impractical in application.
He focused on the lack of medical knowledge of the patient and the fact he considered that they were vulnerable to making irrational judgments. He thought that communication of risks  was a matter of “clinical judgement”. This was typical of the paternalistic attitude of some of the judiciary at that time.
He did however recognised that applying the Bolam test without qualification to the question of disclosure of risks carried a danger of medical paternalism which may not be controlled by the courts.
He therefore held that even where no expert witness in the relevant field condemns the non-disclosure as being in conflict with accepted medical practice it may be open to a judge to come to the conclusion that the disclosure of the risk was so obviously necessary to the informed choice of the patient that no reasonable prudent man could fail to make it.
He then provided a working example and said he had in mind a situation where an operation involved a substantial risk of grave adverse consequences, such as where there was a 10% risk of stroke following surgery as in Reibl v Hughes. His view was of relevance to the argument advanced by the claimant in Montgomery applying what was described as the Sidaway exception.
Lord Templeman seemed to equivocate between an acceptance of the Bolam test and something more. He did recognise that the doctor acting in the best interests of the patient had a duty to provide the patient with information which would enable the patient to make a balanced judgement. He felt that there was a duty to warn of “special dangers”. He also appeared to recognise that it was for the patient to decide whether or not to submit to treatment recommended and also that a patient was entitled to make a decision that seemed to be unbalanced or irrational to the doctor.

Lord Scarman in Sidaway

It is the approach of Lord Scarman that is now of importance given the fact that the Supreme Court in Montgomery [23] commended it as part of the test to be applied.
When considering whether the judge was correct to apply the Bolam test to the duty to provide a patient with information about risks inherent in a treatment he said:

“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.” [24].

“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 [25].

He said that if it is 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.
He was of the view that the decisive question for the court was whether the doctor had overlooked or disregarded the patient’s right to determine for themselves whether or not to have the operation by withholding from them information necessary to make a prudent decision.
He recognised that the duty arose from the patient’s rights. A patient had a right to know what a treatment entails to enable the patient to make a reasoned choice and thus give valid consent. He said:

“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 the doctor to be under a duty to inform the patient of the material risks inherent in the treatment.”

He did recognise that the duty to provide information was of a different order from the duty to take care in treatment, and as such this was not a matter to be decided on the basis of prevailing medical practice. Factors important to the patient required to be considered in making the decision, not simply the view of the doctor.

“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” [26].
‘The doctor’s concern is with health and relief of pain. These are medical objectives. But a patient may well have in mind circumstances, objectives, and values which may lead him to a different decision from that suggested by a purely medical opinion.” [27].

Lord Scarman in Sidaway chose to refer to the cases from the USA and Canada and in his view the propositions in Canterbury v Spence [28] reflected a “legal truth which too much judicial reliance on medical judgement tends to obscure.”

“In my judgment the merit of the propositions enunciated in Canterbury v. Spence, 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.”

On the question of how the court should use medical evidence to enable the court to make a decision but emphasised that the decision was one for the court not the medical profession:

“The Canterburypropositions 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.” [29].

“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.” [30].

“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.” [31].

He considered that the patient’s right to decide for themselves was a basic human right protected by the common law. He was of the view that it was the court that should determine the scope of the duty and also determine whether the doctor has acted in breach of that duty. The court should not allow medical opinion on what was best for a patient to override the right of the patient to make their own decision.

Comment on the decision in Sidaway

In Margaret Brazier’s opinion the Sidaway decision in no way concluded the debate on the role of the law on how much information patient’s should be given to consent to a procedure. She felt that the court had been too readily convinced by arguments that enhancing patient autonomy might in some way damage their health.
She argues that the court failed to take account of the complex nature of the doctor-patient relationship and much of the debate in the UK on the development of effective healthcare.
However, the decision in Sidaway was never a unanimous endorsement of Bolam principles in the information disclosure case but the court did not identify the need to remove the influence of medical practitioners in this area of the law.

Whilst the exception clearly existed and there was recognition that it would not be appropriate to leave information disclosure solely in the hands of the profession the exception was expressed in different ways.
Lord Diplock was the only one who adhered rigidly to Bolam. In 1986 when giving a lecture to the Royal Society of Medicine Lord Scarman commented that Lord Diplock was in a minority of one on this issue.[32].
In Montgomery at the proof (trial) and in the Appeal court in Scotland [33] the court was bound to follow the decision of the House of Lords in Sidaway. The basis of the claimant’s case was that she should have been warned about the risks of shoulder dystocia given she was a diabetic woman of small stature with a large baby, and there should have been a discussion about the options for delivery of her baby.
The options she had included proceeding to a trial of vaginal delivery or elective caesarean section. If she was not informed about the risk of shoulder dystocia and the risks and benefits of the options to deliver the baby she was unable to exercise an informed choice. The decision was for her to make assisted by information obtained from her doctor.
The defenders led expert evidence that as a matter of practice some doctor’s would have warned the claimant about the risks of shoulder dystocia and some would not. Unless the claimant could ask the court to reject that expert opinion as illogical and unreasonable applying the Bolitho test the claimant could not then succeed.
The claimants therefore also argued that the risk of shoulder dystocia was the type of risk that Lord Bridge had envisaged when he talked about the exception to the use of the Bolam test in information disclosure cases. The risk of shoulder dystocia was relevant and that risk was significant as it was agreed that it was around 10% for this particular patient. The risk of brain damage should shoulder dystocia occur was also relevant. The risk of brain damage was small but should it occur the consequences would be catastrophic and on that basis this was also relevant [34]. On this basis the doctor had a duty to disclose irrespective of professional practice.
The defenders always accepted that there was an exception to the use of the Bolam test found in Sidaway but argued at the initial case and on appeal that the Sidaway exception only applied where there was a risk of “serious adverse consequences”. In their view the occurrence of shoulder dystocia was not an adverse event in terms of the exception to the professional practice test envisaged by Lord Bridge in Sidaway.
They argued that it was not the risk of shoulder dystocia that required to be considered but the risk of brain damage should shoulder dystocia occur. In a baby over 4.5kg there was only a 1in 2000 chance of permanent disability and a 1 in 450 chance of brachial plexus injury. Where the risk of brain injury is over 1-2% there was a duty to advise of it unilaterally but this did not apply to this case. The risk of brain damage they said was not significant and therefore there was no duty to warn irrespective of professional practice.
The court at first instance and on appeal rejected the submission that the relevant risk in terms of the Sidaway decision was the risk of shoulder dystocia. They considered that the risk of brain damage should shoulder dystocia occur was the relevant risk when considering the Sidaway exception and given its incidence Dr McLellan did not require to consider discuss it.
Where other jurisdictions were recognising the importance of patient autonomy the UK in Sidaway yet again permitted the medical profession to play a central role in the determination of what information could be given to patients to enable them to exercise an informed choice. When Montgomery went to the Supreme Court and was heard by a bench of 7 it was at last open to the court to consider afresh the test in information disclosure cases and bring the UK into line with professional ethical guidance which had been in place since the 1990’s and the common law in other major jurisdictions.

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[1] 2004 UKHL 41
[2] [1957] 1 W.L.R. 582
[3] [1955] S.C. 2000
[4] See post -We need to talk about Bolam
[5] Sidaway v Board of Governors of Bethlem Royal Hospital [1984] Q.B. 493
[6] O’Malley-Williams v Board of Governors of the National Hospital for Nervous Disease [1975] 1 B.M.J. 635; Wells v Surrey AHA (1978 The Times, 29 July; Sankey v Kensington and Chelsea and Westminster AHA 2 April 1982 unreported; Chatterton v Gerson [1981] Q.B.432; Hills v Potter [1983] 3 All E.R 716; The Bolam direction was considered and approved by the House of Lords in Whitehouse v Jordan [1981] 1 W.L.R. 246 and Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634
[7] [1985] A.C. 871
[8] Montgomery v Lanarkshire Health Board [2015] UKSC 11
[9] A surgical procedure that removes a piece of the vertebral bone called the lamina which is at the root of the spinal canal
[10] (1980) 114 D.L.R. (3d) 1, 13
[11] [1984] QB 493
[12] (1972) 464 F 2d 772
[13] (1980) 112 D.L.R. (3d) 67
[14] 114 D.L.R. (3d) 1
[15] 464 F. 2d 772, 791
[16] Bolitho v City and Hackney Health Authority [1998] A.C. 232
[17] Dunn L.J 517
[18] P521
[19] p523
[20] [1985] A.C. 871
[21] 464 F.2d 772 (1972) (U.S.C.A District of Columbia
[22] [1980] 114 D.L.R.(3d) 1 (S.C.C.)
[23] Montgomery v Lanarkshire Health Board 2015 UKSC 11
[24] P882
[25] P885
[26] P885
[27] P885-886
[28] [1972] 464F 2d 772 (U.S.C.A., District of Columbia)
[29] P888
[30] P889
[31] P889
[32] (1986) 79 J Roy Soc Med 687
[33] The case was heard by an Extra Division of the Inner House in Scotland consisting
[34] A Guide to Clinical Negligence Post-Montgomery, Lauren Sutherland QC, Law Brief Publishing P203-218