Consider the accuracy of this statement regarding Chester v Afshar.
Medical Law
The decision in Chester v Afshar 2004 UKHL 41 can be interpreted to mean both that a claimant can ignore the traditional rules of causation in a clinical negligence case and that the Bolam test (Bolam v Friern HMC 1957 2 All ER 582) is no longer relevant in determining what a patient should be told regarding the risks of medical treatment.
Consider the accuracy of this statement.
Chester v Afshar (1) has influenced two main issues in medical law and those are; the departure from the traditional rules of causation and the extent of disclosure of information prior to obtaining a patient's consent for treatment. I will consider both of these points in turn. First I need to consider the traditional rules of causation before moving on to an analysis of Chester v Afshar in this area. I will discuss causation in relation to disclosure of information and risks because this is what Chester v Afshar concerns.
The only duty in medical negligence is the duty to care for the patient and this is divided into distinct parts, one of which is the duty to provide information. If a claimant contends that he was not warned about a risk in a procedure he will need to prove that the risk should have been disclosed, therefore confirming the defendant has breached her duty to provide information. He would then need to confirm that, had that risk been disclosed, he would not have consented to the treatment proposed. The claimant must prove on a balance of probabilities that the defendant's breach of duty caused his injuries and this is notoriously difficult in cases of disclosure of risk (2).
In cases involving disclosure of risks it is accepted that the "but for" test of factual causation must be applied. This means that the claimant should be able to say 'but for' the defendants negligence, the injury would not have occurred, therefore establishing a direct causal connection. The claimant would need to show had she been made aware of the risk she would not have consented to the procedure (3). If the patient may have gone ahead and had the treatment anyway then it was said causation was not established (4).
The courts may assume that even if the risks had been adequately disclosed then the claimant would still have had the treatment. Due to the difficulties in trying to deduce what the claimant might have done had the information been disclosed, the English courts apply a subjective test to cases like this, and ask would this particular claimant have acted in this way? Inexorably this means relying on the claimant's evidence (5). The difficulty with relying on the claimant's evidence is that it would be impossible to determine what action she would have taken had the correct advice been given.
In Chester v Afshar the claimant alleged that the defendant (a neurosurgeon) had been negligent in his advice prior to the lumbar surgery he had arranged and performed. The claimant had suffered recurring, serious, back pain and had been referred to the defendant who had advised her that three intra-vertebral discs should be removed from her back. The claimant had suffered motor and sensory impairment as a result of that surgery (6). The trial judge found in her favour, that the defendant had been negligent in failing to advise her of the 1-2% foreseeable risk of sustaining serious nerve root damage (7). The trial judge concluded that the defendant had not been negligent during the operation itself but accepted the claimant's statement, that if she had been properly advised as to the risks involved, she would not have consented to the operation taking place on the day it had. She maintained that she would have wanted to explore alternative options and get a second or third opinion, but at no point did she stipulate she would never have consented to the operation at all.
Regardless of this it was more probable that the consultant she saw would have met her concerns (and aversion to surgery) by suggestions of alternatives options. The trial judge concluded that it was sufficient to establish that if an adequate warning had been given, the operation in question would not have taken place and therefore the consequential damage would not have occurred. The defendant appealed, stating the fact of the claimant being unable to say whether she would have went ahead with the operation at some point in the future, as not satisfying traditional legal principles on causation (they also appealed on the point of disputed fact).
The defence contended that the claimant needed to prove she would not have had the operation at any time. The Court of Appeal relied on the majority view in the Australian case of Chappel v Hart (8). where it was held that, even though the patient would have needed to have the operation at some point, it could not be said that she would probably have suffered the same injury, as the situation would have been different and the risk not necessarily identical. The Court of Appeal affirmed the earlier decision and held that in order to establish a causal link between the defendant's failure to warn of the risk, and the damage suffered, it was sufficient to prove that, had she been properly advised, she would not have consented to undergo that operation on that day (the mere possibility that the claimant could not discount that she would never have had the operation, was irrelevant). The defendant's negligence in failing to give an adequate warning had lead to the claimant being operated on at that place and time (9).
Therefore the 'but for' test was still satisfied, although on non-conventional grounds. The purpose of the duty to provide information is to allow the patient to make an informed choice (whether or not to have the proposed operation, at which time and place, and in whose hands the operation should be performed). By failing to give adequate advice, the neurosurgeon had taken away the patient's choice, so the risk that then followed could be said in legal terms, to be caused by a breach of the duty to warn.
Although the Court of Appeal held that whether the claimant would have had the operation later was not relevant to establish causation it would be relevant to the issue of quantum of damages (8). Therefore the defendant could argue that the claimant could have suffered the same damage when having the same operation at a later date and this may account for a reduction in damages.
The full consequences of Chester v Afshar on the traditional rules of causation is yet to be seen. The majority in Chester decided that the duty of care to warn is ...
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Although the Court of Appeal held that whether the claimant would have had the operation later was not relevant to establish causation it would be relevant to the issue of quantum of damages (8). Therefore the defendant could argue that the claimant could have suffered the same damage when having the same operation at a later date and this may account for a reduction in damages.
The full consequences of Chester v Afshar on the traditional rules of causation is yet to be seen. The majority in Chester decided that the duty of care to warn is so important, that justice demanded a "narrow and modest departure from traditional causation principles" (10) and felt that it was fair in the circumstances that the claimant was allowed a remedy (11). The decision acknowledges a right to be informed of serious or significant risks prior to treatment and causative responsibility may now lie where a practitioner fails to disclose a significant risk, and consequentially that risk materialises. The difficulty may lie in establishing what kind of risks are serious or significant enough to be departed to the patient.
After Chester v Afshar, to establish causation the claimant will need to prove that he would at the very least have postponed the treatment, had he been adequately warned. Does the decision in Chester mean that the judges are prepared to relax the traditional connection between the breach of duty and causation of injury? Possibly not if Gregg v Scott is to be followed (12), it seems the rules will only relax in the most exceptional of circumstances as it appears that Chester v Afshar was decided on its own particular facts and therefore it has not introduced a new principle of general application.
In Gregg v Scott, Dr Scott negligently diagnosed a lump found under Mr Gregg's arm as benign when it was in fact cancerous. Consequently, the necessary treatment was delayed for about nine months and this delay decreased Mr Gregg's chances of survival for 10 years from 42% to 25%. Mr Gregg's claim failed, at first instance and in the Court of Appeal (13). All judges were in agreement that the case was further complicated by the outcome for Mr Gregg being unknown (statistical evidence is no substitute for actual facts). However Baroness Hale did accept that, "[w]ell settled principles may be developed or modified to meet new situations and new problems" (14), but on dismissing the appeal said, "But damage is the gist of negligence. So it can never be enough to show that the defendant has been negligent. The question is still whether his negligence has caused actionable damage". It was held that to decide the case otherwise would be such a radical change with possible sweeping consequences that it would have to come from Parliament.
Therefore it appears that Chester v Afshar has dented the previously rigid rules on causation but it does not have the effect of allowing the claimant to disregard them. However, the fact that it was a majority decision goes some way to show that there is an increasing willingness on the part of some judges to develop the law in this area. Therefore, in the most exceptional of circumstances where disclosure of risk is an issue, there will remain the possibility of following Chester by departing from the traditional principles of causation in order to uphold the individual's autonomy. However the courts will not be able to use policy considerations to avoid causation problems in all its contexts. There is now an uncertainty as to the future of causation principles and it may be that another case will justify public policy being invoked to find causation when previously there would be no such finding.
The second part of the question concerns the application of Bolam, and Chester v Afshar's effect on its relevance today in determining what a patient must be told regarding medical risks. The first point to consider is the Bolam test itself. Once the claimant has established the defendant owes him a duty of care (which is implicit in the doctor - patient relationship) the onus is on the claimant to show that the defendant fell below the standard expected of him. The basic standard is of the reasonable man in the circumstances of the defendant, but the standard of a medical practitioner is that established in Bolam v Friern Hospital Management Committee (15). The Bolam test is "the standard of the ordinary skilled man exercising and professing to have that special skill". A man need not possess the "highest expert skill" it is sufficient if he exercises the ordinary level of competence of an ordinary man in that profession, practising that particular speciality (16).
In applying the Bolam test there is no allowance made for inexperience, the fact the defendant is lacking experience will be no defence (17). Once the medical practitioner has held himself out as being competent enough to meet the task in hand then the patient is entitled to assume he can fulfil that task. An exception to this is where a junior medical practitioner asks his superior for instruction, this may allow him to escape liability (18), however this does not advocate the junior following instruction blindly or illegally.
In Bolam the claimant maintained that the defendant was negligent in administering electro-convulsive therapy, that the defendant should have warned him of the risks involved and that claimant should have been restrained manually. The claimant's action failed because the defendant proved that he acted according to current medical practice. The Bolam standard is an objective test whereby the defendant must show he acted in accordance with a reasonable and responsible group of similarly qualified medical practitioners in the same circumstances (19). The test compares like with like, so a neurosurgeon will be compared to other neurosurgeons, and a GP with other GPs (20). The courts cannot decide whether the medical practitioner is negligent without first hearing expert evidence of accepted medical practice.
The accepted medical practice must be current (21) and it is irrelevant if there is more than one body of opinion on the particular issue, as there is always more than one medical practice for the same set of circumstances, it is enough that the defendant can show he acted in accordance with one responsible group of similarly qualified medical practitioners. The amount of medical practitioners following a particular practice may or may not be a factor depending on which case is to be followed. In De Frietas v O'Brien & Connolly the claimant contended that the practice must be followed by a "substantial body" of medical practitioners but the Court of Appeal disagreed stating negligence cannot be determined by counting heads. However in Walsh v Gwynedd Health Authority it was held that one doctor could not constitute a "body" of medical opinion (22).
The Bolam standard has been strongly criticised for enabling the medical profession to dictate to the courts the appropriate standard of care, and has come under particularly heavy criticism in the area of disclosure of information or risks to the patient. The underlying principle of the test is that it is not for the courts to discuss correct medical practice due to their lack of expertise in this area. In other professions, Bolam applies for the same reason, but with a fundamental difference, the scrutiny of expert evidence, to ensure the "responsible professional opinion" is indeed reasonable and responsible (23)
The test in Bolam was modified by Bolitho v City and Hackney Health Authority (24) by stating that good medical practice does not have to be accepted without question. The expert evidence must have a logical basis and the experts should have weighed up risks and advantages associated with the particular procedure and reached "a defensible conclusion" (25). Bolitho limits Bolam in making expert evidence in medical negligence cases not conclusive of the case. Bolitho has been held to apply to cases concerning informed consent (26) and has set the mark for judges to scrutinise medical evidence, in the same way they have scrutinised other professional expert evidence, such as architects or accountants. However Lord Browne-Wilkinson in Bolitho talks about medical opinion, held by competent experts, being challenged or held unreasonable only in "rare cases". Lord Brown Wilkinson said "I am not here considering questions of disclosure of risk", which should probably be taken to mean that restricting Bolam in this sense has already been achieved in disclosure of information cases (27).
Other jurisdictions have rejected the standard set in Bolam regarding disclosure of risks. The Canadian Supreme Court rejected the "professional medical standard" in determining how much the doctor should disclose (28) and recognised a distinction between those matters requiring technical skill and thus falling within the exclusive professional competence of doctors, and conduct not requiring medical expertise, and therefore information which a layman is in a position to evaluate. The Australian courts followed suit and have also abandoned Bolam in this area and held that the patient should be told everything in order to make an informed choice about his treatment. In Rogers v Whitaker (29) the Australian High Court said that the doctor's duty was not decided "solely or even primarily by reference to the practice followed by, or supported by a responsible body of opinion in the relevant profession" (30). It was also held that, "a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment". A material risk being if, in the circumstances, a reasonable person in the patient's position having been warned of that risk, would be likely to attach significance to it, or if the medical practitioner is or should be reasonably aware that the patient would be likely to attach significance to it.
Unfortunately the English courts do not have such a pro-patient stance as was taken in Rogers v Whitaker, and prior to Chester v Afshar the doctrine of informed consent had no place in English Law (31). Sidaway v Board of Governors of the Bethlehem Royal and the Maudsley Hospital (20) rejected the informed consent approach preferring to follow Bolam and let the practitioner decide how much the patient needs to know, as long as he disclosed in accordance with a responsible body of medical opinion (32). However Lord Bridge did state that there may be circumstances where 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" (33). Although Lord Scarman found against Sidaway, he was the only judge out of five to reject current medical practice as test of what the patient needs to be told, but he also upheld therapeutic privilege. Therapeutic privilege will mean the doctor will be justified in withholding information if could be shown on a reasonable medical assessment of the patient that disclosure would have posed a serious threat of psychiatric harm to the patient (34).
In English law the requirement was that only the "broad terms" of the treatment should be volunteered to the patient as laid down in Chatterton v Gerson (35). This means information about the broad risks and benefits of the treatment from the medical practitioner's point of view, and not the patient's (following what similar practitioners would do in similar circumstances, as in Bolam). Whereas American and Canadian law in this area is based on the patient giving an "informed consent" (36) and this requires the practitioner to tell the patient what the patient would want to know and not what the practitioner thinks the patient ought to be told.
However English law may be moving in the direction of "informed consent". The Surgeon's Duty of Care (37) suggested that, in the area of surgery at least, informed consent may be required, "....information should be provided in the detail required by a reasonable person in the circumstances of the patient to make a relevant and informed judgment..." Indications can be seen in the judgements of cases like Chester v Afshar of a move toward informed consent. However whether informed consent becomes the new test instead of good medical practice as laid down in Bolam (as modified) remains to be seen.
In Chester v Afshar it was established that the defendant (in accordance with good medical practice) should have warned the claimant of the risks involved and the possible consequences of surgery (paralysis). A finding of negligence of the defendant's failure to advise the claimant adequately was made under the principle in Bolam. Therefore I believe this recognises the Bolam test as still being relevant today in determining the disclosure of risks pursuant to treatment. Albeit in its modified form, whereby the practice must be logical (24) and that any serious or significant risks would need to be disclosed (20). The test of good professional practice now gives greater respect to patient autonomy.
For consent to be valid it must be freely given (not obtained by fraud or duress). Sufficient information must be given as to the nature of the procedure, and the information given must be relevant to the patient's decision making process (this must be recognised by responsible bodies of similarly qualified practitioners in accordance with Bolam). Information sought by express questioning by the patient must be answered in a full and truthful manner (even if no other practitioner would have done so). This represents a departure from Bolam. In Chester the fact that the claimant asked so many questions regarding the risks involved helped to establish a finding of negligence (38). The medical practitioner must communicate the risks "so obviously necessary to an informed choice..." (20), regardless of responsible medical opinion.
The implementation of guidelines (39) may mean there is less scope for a Bolam style defence (the defendant cannot argue he adopted an accepted medical practice when it is contrary to national standards). Although guidelines do not have the same force as legal rules they may be perceived as having a legal value when used as evidence of good medical practice (40). In relation to disclosure of risk cases The General Medical council now directs doctors to "take appropriate steps to find out what patients want to know and ought to know about their condition and its treatment" and since Chester, the NHS Litigation Authority has issued guidance on the revised approach to take regarding risk disclosure and informed consent. It recommends that "careful and comprehensible warnings about all significant possible adverse outcomes must be given" (41).
Judges evaluating information disclosure cases will be encouraged to take a more pro-patient stance not just by the higher courts in setting precedents in cases such as Bolitho and Chester, but by the medical profession itself through implementation of guidelines. Blind acceptance of assertions of what constitutes good medical practice following Bolam will no longer be possible. It should be noted that possible arguments could also arise under Article 8 of the European Convention on Human Rights, alleging that a failure to provide essential information regarding treatment, breached his or her right to respect of private life.
Bibliography
(1) Chester v Afshar [2004] UK HL 41
(2) Chapman v Mid-Essex Hospital Services [2001] All ER (D) 239. The claimant alleged that the medical staff had assured her she would not suffer a DVT and they had not given her adequate warning of her risk to DVT and if this had been given she would not have had the operation at all. The claim failed on the basis no such assurance had been given.
(3) Smith v Barking, Havering and Brentwood HA [1994] 5 Med LR 285
(4) Hills v Potter [1984] 1 WLR 582, Smith v Barking, Havering Brentwood HA [1994] 5 Med LR 285.
(5) If the objective approach was relied upon (what would the reasonable person have done?) then this would not take into account the claimants own idiosyncrasies, for example a fear of surgery (as in Chester v Afshar).
(6) The defendant maintained adequate warning had been given whereas claimant argued she was misled into believing operation was routine.
(7) Both parties agreed that the nerve root damage that caused the claimants motor and sensory damage was a foreseeable risk, and could occur notwithstanding negligence on the surgeons' part.
(8) Chappel v Hart (1999) Lloyds Law Reports 223
(9) Lord Hope's view was, "the injury was intimately involved with the duty to warn" (para 87, Chester v Afshar).
(10) Lord Steyn, para 24, Chester v Afshar
(11) Para 25, Chester v Afshar, Lord Steyn, "This result is in accord with one of the most basic aspirations of the law, namely to right wrongs", and Lord Hope, para 88, "I would hold that justice requires Miss Chester be afforded the remedy which she seeks..."
(12) Gregg v Scott [2005] UKHL 2. This case concerned the loss of a chance rather than disclosure of risk.
(13) by a majority of 3 to 2 the courts based their decision on the principles in Hotson v East Berkshire Area Health Authority [1987] 1 All ER 210
(14) Para.192, Gregg v Scott (citing Fairchild v Glenhaven Funeral Services Ltd [2002] UK HL 22, [2003] 1 AC 32 and Chester v Afshar [2004] as examples).
(15) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
(16) McNair J, Bolam v Friern Hospital Management Committee [1957] WLR 582 586 188
(17) Wilsher v Essex AHA [1988] 1 All ER 871
(18) Jones v Manchester Corporation and Others [1952] 2 ALL ER 125
(19) Macnair J in Bolam, "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular act ... a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion taking a contrary view....".
(20) Sidaway v board of Governors of the Bethlehem Royal and the Maudsley Hospital [1985] AC 871, HL
(21) Roe v Minister of Health 54, Hunter v Hanley [1955] sc 200 Crawford v Board of Gov of Charing Cross Hospital, The Times 8 Dec 1953 CA, Whiteford v Hunter [1950] WN 553, 94 Sol Jo 758. A practitioner cannot be following an established practice from decades ago when recent developments have meant that a different practice is now followed by similar practitioners to the defendant.
(22) In De Frietas v O'Brien & Connolly [1995] 93 4 med LR 281 CA, Walsh v Gwynedd Health Authority [1998] CLY 400
(23) Edward Wong Finance Co Ltd v Johnson, Stakes and Master 84 AC 296 PC
(24) Bolitho v City and Hackney HA [1997] 4 All ER 771, HL 1st medical negligence case to reach the House of Lords in 10 years.
(25) Lord Brown Wilkinson, Bolitho v City Hackney HA
(26) Pearce v United Bristol Healthcare NHS Trust [1998] 48 BMLR 118, [1998] CLY 3986, [1999] PIQR P 53 " ... if there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course she should adopt"
(27) Pearce v. United Bristol Healthcare N.H.S. Trust, the Court of Appeal rejected Mrs Pearce's claim but whatever the outcome of the case, the Bolam standard of the 'reasonable doctor' was dented in Pearce.
(28) Reibl v Hughes (1980) 114 DLR (3d) 1
(29) Rogers v Whitaker [1992] 175 CLR 479, 490
(30) The Australian cases of Lawns v Woods, Procopis v Woods it was held that the Bolam rule should be applied in the first place but if the courts find that the standard cannot be maintained then they should be prepared to hold the defendant negligent..
(31) Freeman v Home Office [1984] 1 All ER 1036
(32) In Sidaway the judges took into account the risk being less than 1%, and the fact Mrs sideway did not make express enquiries when deciding to find for the defendants. If she did make express enquiries the outcome may have been different.
(33) This would be like substantial risks of grave and adverse consequences (Sidaway)
(34) In Chester v Afshar therapeutic privilege was also upheld.
(35) Chatterton v Gerson [1981] QB 432
(36) Canterbury v Spence [1972] 464 F (2d) 772).
(37) From the Senate of Surgery of GB and Ireland in October 1997: this will include the nature of their condition, along with the type, purpose, prognosis, common side effects and significant risk of any proposed surgical treatments. Where appropriate, alternative treatment options (including non-surgical) should also be explained together with the consequences of no treatment.
(38) Blyth v Bloomsbury HA [1993] 4 Med LR 151, 5 PN 167. General (non specific) questions may not require full and frank answers.
(39) Teff's chapter in Law and Medicine 67-80 ".... The perceived epitome of best practice, they could, w/o displacing Bolam create pressure to reverse onus of proof, requiring doc to establish that failure to adhere to guidelines was not negligent".
(40) It should be noted that where departure from guidelines is justified in the interests of the patient the duty of care may be discharged as well as blind adherence to the guidelines possibly constituting negligence.
(41) It is stressed that this should be recorded and signed by the patient confirming the warning has been given, is understood and risk accepted or records of refusal inc reasons. (Risk alert: informed consent at www.nhsla.com).
Materials
Second Edition Sourcebook on Medical Law, Stauch, Wheat and Tingle, Cavendish Publishing Limited, London, 2002
Medicine, Patients and the Law, Margaret Brazier, Third Edition, Penguin Books, London, 2003
M Brazier and j Miola: Bye Bye Bolam: A Medical Litigation Revolution 2000 8 Med L Rev 85
Lord Chief Justice - Lord Woolf: "Are the courts excessively deferential to the medical profession 2001 9 Med L Rev 1
Clinical Negligence: Informed consent and Causation, Medical Law Review 10, autumn 2002, pp 332-329
Anaesthesia, 2005, 60, pages 215-219, Editorial 2: Progress of the Prudent
Patient: Consent after Chester v Afshar
Websites
www.swetswise.com
www.justcite.co.uk
www.lawtel.com
www.lexisnexis.com
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