Deriche v Ealing Hospital NHS Trust

Medical advice is subject to the Bolam standard. A consultant who revisits a material risk must take reasonable steps to ensure that the patient understands both the nature and potential severity of the consequences. The consultant cannot simply rely on an earlier record of counselling without checking the patient’s current understanding.

The duty remains subject to the doctor’s wider duty of care. Information may be withheld where, on sensible medical grounds, further discussion would cause medical injury, although temporary distress will ordinarily be outweighed by the patient’s right to make an informed decision. A breach of duty does not establish liability without proof that proper advice would probably have altered the claimant’s decision.

The claimant brought a negligence action against the defendant NHS trust concerning advice given during her pregnancy after she contracted chicken pox. She alleged that the consultant had failed to explain the possible severity of congenital abnormalities and had advised her that termination was unnecessary.

The court found that an earlier registrar had counselled her about the small risk and possible congenital malformation. The consultant later described the risk as low or very small, but did not revisit the nature or severity of the possible abnormalities. The issues were whether that consultation met the applicable professional standard and, if not, whether proper advice would probably have led to a termination.

1. Liability. The claim failed because causation was not established, although the court found a breach of duty in the consultant’s advice.
2. The applicable standard was the Bolam test, as confirmed in Sidaway v Governor of Bethlem Royal Hospital (1985) 1 A.C. 871 and acknowledged in Pearce v United Bristol Healthcare NHS Trust (1999) 8 PIQR 53.
3. Both experts agreed that, where the subject properly arose for discussion, the consultant should have ensured that the claimant understood that the possible abnormalities could be severe. At least some major abnormalities should have been given as examples. The consultant was not entitled simply to treat the registrar’s note of full counselling as conclusive.
4. A doctor may, as part of the duty of care, withhold information where further discussion would cause medical injury on sensible medical grounds. More than temporary distress would be required, and that consideration would ordinarily be outweighed by the devastation resulting from an uninformed decision if the risk materialised.
5. Wyatt v Curtis and Central Nottinghamshire Health Authority [2003] EWCA Civ 1779 was not determinative. The present case involved materially different facts, expert evidence, and a consultation specifically sought by the claimant after termination had been raised. The court regarded its conclusion as consistent with the relevant observations in Wyatt.
6. On causation, the claimant had already accepted the small risk after the registrar’s counselling and had continued with the pregnancy. Proper advice from the consultant would substantially have repeated that counselling. The court therefore found no sufficient basis for concluding that she would probably have chosen termination.

The claim was dismissed.