Pearce & Anor v United Bristol Healthcare NHS Trust

Where a patient may be deprived of the opportunity to make an informed choice, a doctor should ordinarily disclose a significant risk which would affect the judgment of a reasonable patient, where the information is needed for the patient to decide the appropriate course.

Significance cannot be determined by a fixed percentage. The doctor must consider the clinical context, the patient’s ability to understand the information, and the patient’s physical and emotional condition. Very small risks may properly be withheld where the clinical judgment is responsible and the circumstances make disclosure inappropriate.

Mr and Mrs Pearce appealed from the dismissal by His Honour Judge Bursell QC, sitting in the Bristol County Court, of their negligence claim arising from the stillbirth of their daughter. Mrs Pearce had been fourteen days beyond term when she consulted the responsible consultant. He advised against induction because of its risk and recommended allowing a natural birth. She was not told that further delay carried an increased risk of stillbirth.

The appeal concerned whether that increased risk should have been disclosed and whether disclosure would have altered Mrs Pearce’s decision. The issues were considered in the context of the doctor’s duty when advising on intervention and non-intervention.

Appeal dismissed with costs; leave to appeal to the House of Lords refused. Lord Woolf MR delivered the judgment, with which Lord Justice Roch and Lord Justice Mummery agreed.

1. In cases where a patient may be deprived of the opportunity to make a proper decision about treatment, the doctor is ordinarily responsible for informing the patient of a significant risk which would affect the judgment of a reasonable patient, where the information is needed to enable the patient to decide what course to adopt.
2. Significance is not determined by a precise percentage. The doctor must take account of the clinical circumstances, including the patient’s ability to comprehend the information and the patient’s physical and emotional condition. The reference point is whether the risk could realistically affect the patient’s judgment.
3. The judgment treated Sidaway v Governor of the Bethlem Royal Hospital [1985] 1 AC 871 as establishing that the majority approach applied the Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 standard to advice, subject to the qualification that disclosure may be obviously necessary to informed choice. The statement of Lord Templeman that a patient may accept or reject medical advice was also regarded as reflecting the law.
4. The reasoning in Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151 supported the limited judicial role in reviewing genuinely held clinical judgments. A court may intervene where professional opinion cannot withstand logical analysis, but medical assessment of risks and benefits ordinarily remains a matter of clinical judgment.
5. On the facts, the additional risk of stillbirth from the short further delay was approximately 0.1 to 0.2 per cent and was not significant. Having regard also to Mrs Pearce’s distressed condition and the risks of caesarean section, the consultant was not negligent in failing to disclose it. In any event, the likely inference was that Mrs Pearce would still have followed his advice.

1. Court of Appeal (Civil Division): dismissed the appeal from the Bristol County Court judgment of 26 November 1996; costs ordered and leave to appeal to the House of Lords refused.