Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital

A doctor’s duty of care extends to advice about risks inherent in proposed treatment. Whether non-disclosure is negligent is determined primarily by reference to responsible medical opinion under the Bolam test. The court nevertheless retains the ultimate legal judgment. A warning may be required where a risk of grave consequences is so substantial and obvious that no reasonably prudent doctor could omit it without a cogent clinical reason.

A competent adult retains the final choice whether to undergo treatment. A doctor must answer specific questions about risks truthfully and sufficiently fully. Liability for inadequate disclosure lies in negligence, rather than trespass, where the patient consented to the nature of the operation.

The appellant underwent elective spinal surgery intended to relieve persistent pain. The operation was performed competently, but an inherent risk of spinal-cord damage materialised and caused serious disability. The risk was less than one per cent. The surgeon had warned of possible nerve-root damage but, on the trial judge’s findings, had not specifically warned of spinal-cord damage or paralysis.

Skinner J dismissed the negligence claim. The Court of Appeal dismissed the patient’s appeal on 23 February 1984. The patient appealed to the House of Lords, contending that the surgeon had failed to disclose a material risk and that liability could arise independently of accepted medical practice.

The central issue was whether a doctor’s duty to disclose treatment risks was governed by responsible medical opinion or by a legal standard derived from the patient’s right to decide.

1. Appeal dismissed unanimously. All five Law Lords concluded that the patient had not proved negligence. The Court of Appeal’s order was affirmed.

2. Per Lord Diplock and Lord Bridge of Harwich, with Lord Keith of Kinkel agreeing with Lord Bridge: advice and warning form part of the doctor’s comprehensive duty of care. The question whether non-disclosure was negligent was primarily governed by the Bolam standard: a doctor is not negligent when acting in accordance with a practice accepted as proper by a responsible body of appropriately skilled medical opinion. The unchallenged evidence established that responsible neuro-surgical opinion accepted omission of a specific warning about spinal-cord damage.

3. Per Lord Bridge: the court was not required to surrender the whole question of disclosure to the medical profession. Even where responsible medical opinion supported non-disclosure, a judge could find a breach if a substantial risk of grave consequences was so obviously necessary to an informed choice that no reasonably prudent doctor would omit it without a cogent clinical reason. The risk proved here was below one per cent and did not meet that description.

4. Per Lord Templeman: neither complete disclosure nor unrestricted medical paternalism supplied the governing standard. A doctor must provide enough information about general and special dangers to permit a balanced judgment, while considering the patient’s interests and capacity to evaluate the information. The explanation given was adequate on the findings.

5. Per Lord Scarman: the Bolam test should not exclusively determine disclosure. A competent patient has a right to information about material risks. Materiality depends on whether a reasonable person in the patient’s position would probably attach significance to the risk, subject to a defence where disclosure would reasonably be considered detrimental to the patient’s health. This approach did not command majority support and, in any event, the evidence did not establish materiality or breach.

6. Lord Bridge stated, obiter, that a doctor specifically questioned by a competent patient must answer truthfully and as fully as the patient requires. The claim sounded in negligence because the patient had consented to the nature of the operation; inadequate information did not itself convert the procedure into trespass.

1. House of Lords: The appeal was dismissed unanimously and the Court of Appeal’s order was affirmed: [1985] AC 871.

2. Court of Appeal: On 23 February 1984 the court dismissed the patient’s appeal from Skinner J.

3. High Court: On 19 February 1982 Skinner J dismissed the action for damages.