THE PHYSICIAN’S DUTY TO WARN: AUTONOMY, INFORMATION AND THE PATIENT
| Date | 01 December 1995 |
| Published date | 01 December 1995 |
| Author | TERRY SHEUNG-HUNG KAAN |
The current English position on the patient’s right to information about treatment choices was settled in 1985 by the House of Lords in the case of Sidaway v Bethlem Royal Hospital Governors. Since that time, there has been new and significant developments in the law defining and governing the relationship between physicians and their patients, and in particular, the development of the principle of the patient’s right to self-determination as the controlling premise in the relationship. TheSidawayapproach is becoming increasingly isolated as other common law jurisdictions adopt different approaches to finding the proper balance between the rights of patients, the medical profession, and public policy. This article examines some of these developments, and ventures some thoughts on the future direction of the law on this point in Singapore.
In this paper, I have deliberately avoided the use of the phrase “informed consent”, for reasons which shall be apparent from the discussion, except when it is used to describe the American doctrine as defined in the case of Canterbury v. Spence1, and adopt instead Lord Scarman’s characterization of it as “a legal duty to warn”.2
In 1957, when the landmark case of Bolam v. Friern Hospital Management Committee3 was decided, one could quite reasonably make out a case for the physician limiting information to the patient if the physician in his professional judgment thought that full information would not be in the best interests of the patient. In the 1985 case of Sidaway v. Bethlem Royal Hospital Governors, the House of Lords considered and affirmed the Bolam formulation of the physician’s duty to inform, and the majority law lords took the view that under certain circumstances, less than full disclosure was justified.
In Sidaway, Mrs Sidaway brought suit against the surgeon who had performed a laminectomy of the fourth cervical vertebra and a foraminectomy of the disk space between the fourth and fifth cervical vertebra to relieve chronic pain in the neck and shoulders. At the time of the operation, Mrs Sidaway was 71 years old.
The operation was not a success: Mrs Sidaway became partially paralyzed. Now, the skill of the surgeon, and the care that he took in performing the
operation was not in doubt — it was one of those classes of operations that always carry with them an incidental risk of catastrophic failure or injury, however carefully and skillfully that they may be performed. Accordingly, Mrs Sidaway could not and did not dispute this point. Instead, she chose to say that had she been told of the risk of catastrophic failure, which was estimated to be somewhere in the region of 1% to 2%, she would not have given her consent to what was clearly an elective procedure. She alleged that her surgeon had not informed her about this risk, and that therefore he was in breach of his duty to give her all the information necessary for her to make an informed decision. She claimed that her consent had been vitiated because it had given on incomplete information.
From the viewpoint of medical jurisprudence, this case was upon its facts a most unfortunate choice for a test case in so important an area of law. The evidence before the court was rather unsatisfactory, mainly because the surgeon had died by the time the matter came to trial, so the court never had the benefit of evidence from the surgeon in his own defence. In the end, it quite simply boiled down to Mrs Sidaway’s word against the surgeon’s, and her appeal was rejected unanimously. Lord Scarman, who had dissented from the other law lords in their approach to the legal question of the physician’s duty to warn, effectively made the decision an unanimous one by holding she had failed on the evidence to prove her case that the surgeon had failed to warn.
The majority in the Sidaway rejected her case broadly on the basis that the Bolam approach applied to the giving of advice and information to the patient as much as to the actual treatment itself. The test was whether the non-disclosure of the risk of injury accorded with a practice accepted as proper by a responsible body of medical opinion. It was not a question of what the patient as a reasonable man or woman would have wanted to know, but what a body of informed and responsible body of medical opinion would have thought that it was proper for the patient to know.
The sole voice of dissent in Sidaway came from Lord Scarman, whose leading speech in that case accounts for half of the report of the case. He rejected completely the majority view and argued cogently for the adoption of the “informed consent” doctrine adopted by some American courts, as first developed in full force the 1972 case of Canterbury v. Spence (the facts of this case is discussed below). Stated broadly, the informed consent doctrine holds that the consent given by a patient to invasive medical procedures may be vitiated if the physician fails to give sufficient information to the patient as to enable the patient to make a truly informed decision.
When Sidaway was decided, Lord Diplock was able to say that he found 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 are real risks”. With respect, the position is now very different. Australia has now to be added to the list of common law jurisdictions with a different view. Significantly, the highest courts of Canada and of Australia have chosen to part company with Sidaway. While neither have accepted the American formulation of the informed consent doctrine, they have however made clear that for logical and legal policy reasons, the Bolam approach to the duty of the physician to advise and give information (as distinct from the duty to properly diagnose and to treat) is no longer tenable and is not to be followed in those jurisdictions.
These cases are instructive and as decisions of the highest authorities within the Commonwealth jurisdictions, of potentially great importance, for they may prove to be persuasive precedents when the time comes for the Singapore courts to hear a claim directly on point of the physician’s duty to warn.
In 1972, the case of Canterbury v. Spence was decided by the United States Court of Appeals, District of Columbia Circuit. In it is found the classical statement of the American doctrine of informed consent, which Lord Scarman in Sidaway conceded was “new ground in so far as English law is concerned”. The reasoning in the case is very simple. The facts bear some resemblance to that in Sidaway. Mr Canterbury was a young man of 19 when he saw a surgeon about a pain in his back. The surgeon told him that he needed a laminectomy to correct what the doctor suspected was a ruptured disc.
Mr Canterbury consented (and his mother also, because of his age) to the operation. Neither of them were told of the risk of paralysis, which although small, was inherent in this kind of procedure: when the mother asked if the operation was serious, the surgeon replied, “not anymore than any other operation”. The operation was carried out, and a day after the operation, Mr Canterbury fell from his hospital bed after having been left without assistance while voiding. As a result, he became paralyzed in the lower half of his body, and he had to be operated upon again. This did not cure him. Mr Canterbury eventually became paralyzed in his bowels, and suffered from urinary incontinence. At the trial, the surgeon gave evidence that there was about a one-percent chance of paralysis in laminectomies even without trauma, but that he considered that this was only “a very slight possibility”. He was of the view that it was not good medical practice to disclose this because it might deter patients from undergoing needed surgery.
In considering the appeal, the US Court of Appeals took as their first premise the principle that every patient has a right to self-determination, and that this right of self-determination was the paramount consideration governing the relationship between patient and physician. Everything done or sought to be done by the physician to or for the patient had to be done
with the consent of the patient. For a consent to be operative, the patient was entitled to have before him all the facts necessary for an informed decision.
The Court of Appeals in Canterbury held that “[a]ny definition of scope in terms purely of a professional [medical] standard is at odds with the patient’s prerogative to decide on projected therapy himself. … In our view, the patient’s right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is the information material to the decision.”4
The court acknowledged that there was “no bright line” separating that which should be disclosed from that which was too remote to be disclosed. It was a question of fact: “Whenever non-disclosure of particular risk information is open to debate by reasonable-minded men, the issue is for the finder of the facts”. On the issue of causality, the court opted for an objective standard: “what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance. If adequate disclosure could reasonably [emphasis mine] be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not. The patient’s testimony is relevant on that score of course...
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