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(4) Medical Law

Legal Medicine and Medical Law - A conceptual interview

Clinical Ethics and Law

 

ML

 

Children

 

Every jurisdiction has a formal definition of a ‘child’ for legal purposes. In the UK a ‘child’, for the purpose of medical decision-making, is anyone under the age of 18. The definitions sometimes create curious anomalies. A court might find a boy of 12 guilty of murder, but he’s not entitled to refuse treatment for his own acne.

 

Very broadly, children do not have (or it is assumed that they do not have) the ability of competent adults to understand the consequences of their decisions. But this statement is too broad to be the sole basis of responsible law-making. It’s plainly foolish to assume that as midnight strikes to usher in her 18th birthday, a child is suddenly given a completely new set of cognitive faculties. And many 17-year-olds (and 16-year-olds, and no doubt some eight-year-olds) will have a maturity and sophistication denied too many legally competent 50-year-olds. Nonetheless, lines have to be drawn somewhere.

 

The lines can work injustice. In most jurisdictions treatment can be given to non-consenting children who are deemed to be in their best interests. But compulsorily treating a perfectly comprehending, sophisticated 17-year-old is a terrible thing. And so, generally, the law has allowed the lines to bend. Thus in the UK, which is fairly typical, there’s the notion of ‘Gillick competency’ (see Gillick v West Norfolk and Wisbech AHA (1986)). A child has the capacity to consent to medical treatment when she ‘achieves a sufficient understanding and intelligence to enable … her to understand fully what is proposed’. That includes, of course, the ability to understand the consequences of not being treated.

 

Whether a particular child has that understanding and intelligence is a question of fact. In many legal systems there’s an asymmetry between the law relating to a child’s ability to consent to treatment and to refuse treatment. In the UK, for instance, statute provides that a 16-or 17-year-old’s consent to treatment is as valid as that of an adult. But the same does not apply to refusals of treatment. There the common law, Gillick rule applies.

 

At first blush this looks illogical. But in fact it makes sense. It reflects the law’s presumption that clinicians are likely to suggest to a child only treatment that is in the child’s best interests. Accordingly the court can say, in response to a 16-or 17-year-old’s refusal: ‘We’ve looked at the case carefully, and it’s clear that doctor knows best. You’ll have the treatment.’ The question of parental consent or refusal of consent is vexed. It’s often said, even by lawyers, that parents (or, more accurately, those with parental responsibility) have a right to make treatment decisions on behalf of their children. Consent forms are printed and hospital protocols devised with that in mind. But it’s not the full legal truth.

 

What’s really happening is that the law presumes that parents (being, usually, uniquely concerned and knowledgeable about their children) will be the best arbiter of what is in the child’s best interests. But that presumption can be displaced. The final decision in relation to a child’s treatment always rests with the court.

 

Take a seven-year-old child in a family of Jehovah’s Witnesses. The child is knocked down by a car. If the child does not have a blood transfusion he will die. The devout parents refuse to give their consent. In their view, the eternal consequences of receiving the blood will be more serious than the child’s physical death.

 

This is the sort of consent case that often reaches the court. In almost all such circumstances the court overrules the parents-deciding that it is in the child’s best interests to live. In the US, for instance, the court said:

 

Parents may be free to become martyrs themselves, but it does not follow that they are free in identical circumstances to make martyrs of their children … (Prince v Massachusetts (1944))

 

But the court does not overrule the parents blithely. It considers carefully the sad fact that a child who receives blood may be rejected by her parents and cold-shouldered by the community. That fact is factored into the best-interests equation. One can imagine extreme circumstances where a child, if she survives, would in any event have a seriously diminished quality of life. If one adds to this the burden of ostracism, one may be forced to the conclusion that it is not in the child’s best interests to have the life-saving transfusion.

 

The best-interests test has a long chronological perspective. It looks far into the future. Imagine, for instance, that child X has leukaemia. His only realistic chance of survival lies in receiving a bone-marrow donation from his eight-year old sister, Y. This will involve sticking a large needle into Y and aspirating marrow. Y refuses to agree to the procedure. She hates her brother because he has just stolen her teddy bear. In fact, of course, her refusal is legally irrelevant: she cannot validly either give or refuse consent. The teddy bear incident will just make the business of getting the marrow that much more traumatic than it would be with a compliant child.

 

The test of whether Y should be forced to donate the marrow is simply whether it is in Y’s best interests. Courts in such circumstances have typically found that donation is in Y’s best interests, although the aspiration itself is clearly a medical detriment. It is in Y’s interests that her brother lives. Not only will Y have the benefit of growing up with X (dubious though she might see that benefit to be, just at the moment), but she will be spared the stigma of being her brother’s de facto executioner. One could hardly expect her parents’ attitude to her to be unaffected by the fact that she could have saved her brother but failed to do so.

 

 

 

When is consent not consent?

 

 

 

In Victoria, Australia, a perverted doctor inserted an instrument into a woman’s vagina. His motivation was purely sexual: there was no clinical indication. The woman consented because she thought it was diagnostically necessary.

 

The doctor was tried for sexual assault. He was acquitted, the Supreme Court of Victoria finding that there was no assault. The woman’s consent was real. There was no fraud as to the nature and quality of the doctor’s act (R v Mobilio (1991)).

 

This decision, which seems bizarre to many, was the legacy of an old English case, R v Clarence (1988). Clarence was infected with gonorrhoea. He knew it, although his wife did not. He had sexual intercourse with her. She contracted the infection. He was prosecuted. It was said that he had assaulted his wife. Nonsense, he said: consent is a defence to assault. She’s a grown woman, and she knew exactly what she was consenting to-namely sexual intercourse. The prosecution responded that her consent was not real, and that had she known that he was infected she would not have agreed to sex. The appeal court was no doubt worried about the dire social consequences of suggesting that a wife (who shared, per the Bible, one body with her husband) might have any excuse not to have sex at the husband’s whim. It agreed with Clarence. Mrs Clarence had consented to an act of the ‘nature and quality’ of that which had occurred.

 

Clarence continued to wreak injustice in England until 2004, when, in the context of transmission of HIV, it was finally held that where one does not know but a sexual partner has a sexually transmissible infection, consent to sex (R v Dica (2004)). Another way of putting it is that the court looks more to the mind of the defendant than to the state of knowledge of the victim in deciding on liability in sexual assault cases. That’s no surprise.

 

That’s the criminal law. Medical gropers are less safe from prison than they were. If you’re going to touch someone, whether in the course of a medical consultation or otherwise, you will do so criminally unless you do it with their express or implied consent, and that consent will not be real (at least in a sexual context) unless the real reason for the touching is what the patient thinks it is. But the criminal law, slanted towards acquittal as it must be, is necessarily more forgiving to defendants than the civil law. If you’re convicted of a criminal offence your liberty is in jeopardy. If you’re found liable for a civil wrong, at most your wallet, and perhaps your reputation, will be. A lower quality of consent is required to exculpate in the criminal law than in the civil law.

 

The whole notion of ‘informed consent’ permeates, and sometimes paralyses, medical practice.

 

‘Informed consent’ itself is a US idea, but, like so many ideas, it has crossed the Atlantic and metastasized throughout Europe and the common-law world. It’s got a good pedigree. We can argue about the age of that pedigree, but a sensible point to start is 1957, when the California Court of Appeals stated that ‘a physician violates his duty to the plaintiff and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment’ (Salgo v Leland Stanford Jr University Board of Trustees (1957)).

 

The US courts built on this and other observations a massive edifice that supposedly protects patients, and certainly terrifies doctors. In the enormously influential case of Canterbury v Spence (1972), a US District Court observed that the doctor’s duty was not merely a duty to answer questions, but a duty to volunteer information. Rejecting conclusively the operation of the English Bolam test in the law of consent, the court held that the right to self-determination was so crucial that the law, rather than doctors themselves, should set the required standard. The doctor must disclose all ‘material risks’. A risk is material when ‘a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy’. Only where disclosure of the risks would pose ‘a serious threat of psychological detriment to the patient’ could non-disclosure be justified. The Canadians agree (Reibl v Hughes (1980)). So do the Australians (Rogers v Whittaker (1992)). The English law in the area is harder to describe. The leading case is Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985), but it’s terribly difficult to work out what it says.

 

There were five judges, and four very different judgments. There has been a tendency to read only those judgments supporting the notion that the Bolam test applies (and accordingly that the doctor will have discharged his obligation if he counsels the patient in a way that would be endorsed by a responsible body of medical opinion). But English lawyers are beginning to read and apply the other judgments-and in particular those which hint at the US way of looking at things: see Pearce v United Bristol Healthcare NHS Trust (1999). In any event, professional regulatory codes are increasingly using the US language of informed consent, and if that’s the case, it’s hard to say that Bolam responsible UK doctors shouldn’t feel obliged to treat their patients as if they practiced in New York.

 

There’s another reason, too, why Europe is becoming more and more wedded to the notion of ‘informed consent’ as understood in the US. That’s the European Convention on Human Rights. Article 8 of the Convention robustly protects patient autonomy. Even if Bolam doesn’t insist on full disclosure, Article 8 may do so-unless it can be contended under Article 8(2) that such insistence is likely to gum up the health-care system to the overall detriment of society. In fact such a contention isn’t fanciful. Full disclosure of risks sounds fine, but is it possible? And if it is possible, is it practicable?

 

Every drug ever produced, and every procedure ever devised, has actual or potential complications, some of them vanishingly rare and recorded only in highly obscure journals. It’s simply not possible to run through them all. And if it were, it’s neither practicable (it would leave no time for any treatment at all) nor desirable (because many people would be scared stiff by the mention of a horrifying but almost unknown possibility, and would irrationally decline treatment, or be inappropriately worried while undergoing it). Some sort of balance needs to be struck between full disclosure and sensible disclosure. It may be that the balancing exercise demanded by Article 8 is the sensible way to strike that balance.

 

But perhaps there is another, even more fundamental, reason to be less dumbstruck than we often are by our awe of informed consent. And that is that it’s not possible to identify the person who’s really giving consent. By all means respect autonomy: a system that doesn’t do so is malignant. But ask: ‘Whose autonomy?’ Consider a person who is faced with a decision about whether to have life prolonging treatment for cancer. The biological man may want to cling onto life with the help of any available technology. The sentimental family man might want to see his children for those extra few months. The considerate family man might want to die early so as ‘not to be a burden’ to his family.

 

The man who has read John Stuart Mill and drafted a ‘life-plan’ might want to die as he has lived, with a proud independence unfettered by morphine and incontinence. The religious man might think that sophisticated therapy frustrates the will of God. And so on. Few of us are, at least when it comes to ontological challenge, well-integrated people. We’ll be one person one minute, and another the next.

 

 

 

The consequences of failing to obtain the patient’s consent

 

 

 

One example makes the point. You go to your dentist. He tells you that a lot of work needs to be done, and that if it’s not, the consequences for your dental health will be dire. You sign a form agreeing to the treatment. He drills and fills. You pay him.

 

 

 

Criminal consequences

 

 

If the treatment was unnecessary, and the dentist knew it, he has procured your consent by fraud. He might try to run a Clarence-type argument (saying that you knew the nature and quality of what you consented to), but he’s likely to fail. Quite apart from committing an offence of dishonesty, which could have its own criminal consequences, he has assaulted you, and can be prosecuted in the criminal courts. If there was a sexual motive, of course (if he’d gassed and groped you), he can be prosecuted too.

 

 

 

Civil consequences

 

 

 

Assault is a civil wrong too. Touching someone without their (sufficient) consent is an assault/battery. If the treatment was, to the dentist’s knowledge, unnecessary, he can be sued for damages for assault. But perhaps your dentist was not dishonest. Perhaps he should just have given you a better explanation than he did of the risks and benefits of the treatment. In the US and many other places you’re entitled to know the material risks. It’s negligent not to explain them. Your autonomy rights have been outraged. The way the law looks at such negligence in consent cases is complex. It’s enough to say here that it may be possible to get damages representing the consequences of that negligence.

 

 

 

Disciplinary consequences

 

 

 

The dentist is accountable to his regulatory body. He is obliged to comply with a set of professional standards. Depending on the facts, he may have breached those obligations. This may have put his registration at risk, or attracted some other disciplinary sanction.

 

 

 

Clinical negligence

 

 

 

Doctors, being human, make mistakes. Since doctors’ business is with human bodies, and human bodies are really rather important for much of the business of living, loving, and earning, those mistakes can be far-reaching and expensive.

 

But does that mean that an honest mistake by a well-meaning doctor should give an injured patient a right to sue? If so, what yardstick should be used in deciding that a doctor has fallen short of the mark? If a doctor has made a mistake, should all consequent damage, however remote, and however amorphous, be placed at the doctor’s door?

 

This is the world of clinical negligence-a term that makes the eyes of many (and in particular Americans) roll. To many it speaks of shiny-suited, ambulance-chasing, claim-inflating lawyers, whose greed makes clinicians and insurers tremble, and causes patients to be hysterically over investigated in an effort to see off the litigators. Clinical negligence claims are agonizing for everyone but the lawyers. The lawyers should be impoverished if they can be. But it’s hard to get rid of them completely.

 

 

 

‘No fault’ or tort?

 

 

 

In theory the clinical negligence industry isn’t inevitable. The state, or a consortium of insurers, could simply decide that they will pay out compensation on a no-fault basis to the victims of medical mistakes without the need for the elaborate and expensive ballet of the courts. But in practice this rarely happens. There are two main reasons. The first is the sheer expense that would be involved in such a scheme. In the UK, today, a baby whose cerebral palsy has been caused by obstetric negligence could get an award of £10 million-reflecting a lifetime’s loss of earnings, the need for a lifetime’s care, therapy, equipment, and so on. Suppose there’s a modest (25 per cent) chance of avoiding a £10 million liability. To get that chance you’ve got to go into the casino (it’s called a court). Most casinos have an entrance fee, and this one certainly does. It’s made up of lawyers’ fees, expert witness costs, and many other elements. But even with the sleekest lawyers, the most eminent experts, and the 75 per cent probability of having to pay all of the claimant’s costs too, it will often be financially sensible to pay the entrance fee, spin the wheel, and see if that one in four chance comes up.

 

The second reason why no-fault schemes are unattractive in the clinical negligence context is the frequent difficulty of establishing causation. A no-fault scheme in relation to road traffic accidents is one thing. If car A hits car B, and the occupants of car B get hurt, it’s often not hard to attribute that hurt to car A. But in clinical negligence claims causation is often much murkier. Many cases end with the defendant having been found to be in breach of duty, but with the claimant failing to prove that that breach of duty has caused any loss. No-fault schemes have to presume that causation is straightforward. You can’t do that in medicine. Cells and enzymes are less predictable than trucks.

 

The New Zealand experience illustrates this well. New Zealand has a no-fault scheme of compensation for medical injuries, but it requires a claimant to prove that her injury was caused by ‘medical or surgical misadventure’. Many clinical negligence claims in tort jurisdictions are concerned solely and agonizingly with precisely that.

 

Other supposedly no-fault schemes in fact find themselves edging back towards fault. Sweden is a good example. Fault, it insists, is irrelevant: claimants are compensated for injuries that result from inaction on the part of a clinician that is ‘medically unjustified’. But to argue about whether something is medically unjustified is, very often, to argue about whether the doctor is at fault. Tort is surprisingly hard to escape.

 

 

 

The elements of a clinical negligence claim in tort

 

 

 

Just as in any negligence claim in a tort-based system, to be successful in a clinical negligence claim in tort a claimant must prove that:

 

- The defendant owed him a duty of care

 

- There has been a breach of that duty

 

- The breach has caused damage

 

- Of a type recognized by the law of tort.

 

 

 

Claims in contract

 

 

 

Private medicine is performed according to contracts. The relevant contract will often be between the patient and the doctor who provides the care. The position is sometimes complicated by the involvement of medical insurers and private hospitals: it may therefore be that a contract exists between the insurer and a hospital, rather than the patient and the doctor.

 

In the simple situation of a contract for treatment between the patient and a doctor, the contract, in practice, adds little or nothing to the law of tort. Many countries (for instance France, Belgium, Germany, Austria, Switzerland, and Greece) use contractual models for establishing the liability of a doctor, but the courts in all jurisdictions have been very reluctant to read the governing contract as anything other than an agreement by the doctor to use the skill and care reasonably to be expected of a doctor holding himself out as having the expertise of the defendant. The law of tort makes an identical demand. In particular the courts are unhappy about construing an agreement as an agreement for a particular medical or surgical result-for instance a cure of the patient’s cancer, or a pair of breasts that look like the ones in the surgeon’s brochure. This is because they recognize the vagaries of biology. The clinician never has complete control, and so it is unfair for a contract to assume that he does.

 

This is not to say that analogies with contract aren’t sometimes enlightening. Sometimes they are-and particularly in relation to the question of damages for loss of a chance.

 

 

 

Duty of care

 

 

 

The existence of a duty of care is seldom an issue in medical cases. By and large there is no obligation to be a Good Samaritan. When the tannoy pleads ‘Is there a doctor in the house?’ the doctor can sit quietly and ignore it. In most (but not all) jurisdictions he will be safe from the law, if not from his conscience, if he watches an entirely salvageable patient die. Doctors, in short, usually owe duties only to their patients, and can decide who their patient is and who isn’t. Usually it’s obvious when someone is a patient of a particular clinician, and of course clinicians have a duty to take reasonable care of ‘their’ patients. Often several clinicians will owe a duty to a single patient. In a state health-care system the appropriate defendant will usually be the statutory provider (for instance the National Health Service Trust or the hospital) which employs the clinicians directly responsible for the patient’s care.

 

Very occasionally, though, there are arguments about the existence of a duty. Imagine, for instance, that a doctor is employed by an insurance company. His job is to look through the medical notes of potential clients to see if they are a good insurance risk. He is looking through X’s notes when he discovers a clear indication that X is suffering from an entirely curable cancer. It is plain that X’s own clinicians have missed the cancer. What should the doctor do? Does he have to tell X what he has found, so that X can get the necessary treatment?

 

Or suppose that a surgeon performs a vasectomy on Boy, and then, negligently, assures him that he is sterile and need take no more contraceptive precautions. Boy later meets Girl. Over wine and dinner in a candlelit restaurant, Boy romantically assures Girl that he is sterile. Accordingly Girl has unprotected sex with Boy. The assurance was wrong, and Girl becomes pregnant. Can Girl sue the surgeon?

 

There is wide variation between jurisdictions as to how these issues are resolved. But most countries use a formula akin to the English one, asking whether the relationship between the claimant and the defendant is sufficiently close, whether the damage suffered by the claimant is a foreseeable result of the defendant’s negligence (a test more obviously at home in the law of causation, but which has had a home in the law relating to duties at least since the canonical case of Donoghue v Stevenson (1932)-the one about the snail in the ginger beer bottle), and whether it is just and reasonable to impose such a duty on the defendant: see Caparo Industries plc v Dickman (1990). Policy considerations play a big part in the determination-particularly in relation to this third element.

 

The insurance company case would be difficult to call, but many judges would find that the doctor’s duty was restricted to the duty he owed by contract to the employing insurer (compare Kapfunde v Abbey National plc (1999)). The vasectomy case is a real example: the English Court of Appeal held that one could not owe a duty to all the potential sexual partners of a patient, and accordingly that Girl had no claim: Goodwill v British Pregnancy Advisory Services (1996).

 

This doesn’t mean that a doctor cannot owe a duty to unknown third parties. A psychotic patient tells his psychiatrist that, if released from his secure hospital, he will kill the first person he sees. The psychiatrist negligently discharges the patient and, true to his promise, the patient strangles, on the hospital steps, the first passer-by he sees.

 

Could the victim’s family sue the psychiatrist? Almost certainly: see Tarasoff v The Regents of the University of California (1976); Palmer v South Tees Health Authority (1999). What if the victim were the second person the patient saw? Very likely. Or the twentieth? Very probably. Can it not be said that there’s a duty to any victim? That goes directly against authorities like the vasectomy case (Goodwill). But to say otherwise is to give negligent doctor immunity simply because the patient has been incautious enough to blurt out his plans. Why should that blurt have the effect of restricting the doctor’s duty? Shouldn’t it rather have made the release more negligent? The doctor has loosed into society a deadly weapon which might go off at any moment with obviously foreseeable loss of life. Shouldn’t the law have something to say about that? The answer is that the law should and does, but what it says is stuttering and inconsistent. This is a fast-evolving area. The next big steps in that evolution are likely to occur in relation to the liability for damage done by psychiatric patients, liability for transmission of HIV or other sexually transmitted diseases by sexual partners of a doctor’s patient, and liability for psychiatric injury to people other than patients.

 

This sort of psychiatric injury is common. A father might watch the delivery of his dead child-dead through the negligence of the obstetrician-and be traumatized as a result. A mother might be depressed by the burdens of bringing up a negligently brain-damaged child. The worry about compensating these apparently deserving claimants is that it will open the floodgates to a tsunami of claims. Many people far removed from the scene of the tort can be mentally affected in various ways by clinical negligence.

 

Various devices are used to keep the floodgates shut, including a requirement that a claimant is in a close relationship to the patient, or has witnessed the ‘immediate aftermath’ of the negligence.

 

 

 

Breach of duty

 

 

 

In England and many other jurisdictions the test for breach of duty is the Bolam test (see Bolam v Friern Hospital Management Committee (1957)). This says that a professional will be in breach of duty if what they have done would not be endorsed by any responsible body of opinion in the relevant specialty. It is a test both of substantive law and of evidence, and has become ubiquitous in professional negligence law, being used to determine the liability of everyone from heart surgeons to plumbers (who, after all, have a lot in common).

 

It has sometimes been abused by defendants and defendant-friendly judges, some of whom, seeing any attack on fellow professionals as a general attack on the middle classes, have been happy to acquit a doctor of negligence on the basis of the evidence of another doctor who, having miraculously remained on the register for an undistinguished professional lifetime, is prepared to say (at Euros 200 an hour) not that he would have done an operation in the way that the defendant did, but that he once met  someone in the golf club who’d also astonishingly escaped erasure who did it that way.

 

Claimants rightly railed against this. Their complaints led, in England, to a revisiting of the test in Bolitho v City and Hackney Health Authority (1998), in which the court pointed out something that had tended to be forgotten-namely that the old test referred to responsible opinion. There may be cases, it said, where, notwithstanding evidence that the defendant adopted a common practice, the defendant might still be negligent-if the practice did not stand up to logical scrutiny.

 

This provoked howls of worry from doctors, concerned that their professional practices would be second-guessed by medically unqualified judges. To many, those howls sounded petulant. The doctors were really insisting that they and only they should set the standards by which they should be judged.

 

And if you are the law, aren’t you above the law? It was precisely those concerns that had made other jurisdictions reject the Bolam approach and leave the setting of legal standards in the hands of the courts. The best examples relate to the law of consent: Bolam is on the retreat. Bolitho chased it into its proper place, but medicine itself has eroded Bolam’s authority significantly. Medicine is increasingly evidence-based. Proper medical practice is increasingly based on large, statistically significant studies of efficacy which are embodied in clinical guidelines. There’s a diminishing amount of room for opinion. If the literature conclusively shows that practice X is better than practice Y, then (economic considerations aside) how can anyone responsibly adopt practice Y?

 

Consent cases occupy a curious corner of the clinical negligence world. They are very common. A patient might, for instance, say that she was not appropriately warned about the risks of surgery, that had she been warned she would not have consented to it, and accordingly that she would have been spared the damage wrought by the surgery.

 

Even in jurisdictions where Bolam rules, it is not self-evident, according to a number of eminent authorities, that the test for liability in relation to allegedly negligent consenting of a patient should be the Bolam test. In the leading English authority, Sidaway v Board of Governors of the Bethlem Royal Hospital (1984), a case whose effect is famously obscure, the House of Lords, while upholding the broad proposition that the Bolam test applied, did so cautiously, suggesting that judges might be more ready than in other classes of case to make up their own minds about whether the doctor in question had done what was necessary.

 

Lord Scarman, dissenting, approved the position in the US case of Canterbury v Spence (1972), in which the US court, while not saying that evidence about medical practice was irrelevant to the question of what amounted to appropriate care, insisted that the court, and not the medical profession, was the arbiter. Lord Scarman was embraced in several Commonwealth countries. Even in conservative England he’s slowly being rehabilitated. Ever since Canterbury v Spence, Bolam, cold shouldered elsewhere, has been shown emphatically to the door in consent cases in Canada (see Reibl v Hughes (1980)), Australia (F v R (1983)), and South Africa (Castell v De Greef (1994)).

 

Canterbury v Spence articulated the ‘reasonable patient’ test, which we met in Chapter 5. Material risks must be disclosed. A risk is material if it would be regarded as significant by a reasonable person in the patient’s position. There’s an exception, inconsistently recognized by judges across the world, and apparently frowned on by some professional regulatory bodies: this is the ‘therapeutic privilege’-the notion that information can be withheld if to disclose it might be psychologically harmful.

 

Once a revolution starts, it’s difficult to stop. If the unthinkable could be thought in relation to consent cases, why stop there? Why not abolish all reference and all deference to expert medical evidence in all clinical negligence cases, and let the law do the job (which many presume is its only, or at least main, job) of setting standards?

 

That was indeed the view of Gaudron J in the High Court of Australia case, Rogers v Whittaker (1992):… even in the area of diagnosis and treatment, there is, in my view, no legal basis for limiting liability in terms of the rule known as ‘the Bolam test’ … [I]t may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such, it may have some utility as a rule of thumb in some jury cases, but it can serve no other useful function …

 

This was fighting talk. It was not adopted by the majority of the court in Rogers v Whittaker, who restricted their restriction of Bolam to counselling cases, observing that ‘There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice and information to the patient … Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.’

 

There are many who would like to see Bolam excised wholly from the law books-and not just those sections that relate to counselling. For them, Bolam stinks of medical paternalism; of the closing of the white-coated professional ranks against the desperate patient.

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