Medical Law Review

2009

On the materiality of risks: paper tigers and panaceas

Jose Miola

Subject: Health. Other related subjects: Negligence

Keywords: Australia; Autonomy; Bolam test; Duty to warn; Informed consent; Medical treatment;New Zealand; Risk

Cases: Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871 (HL)

Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 (QBD)

Rogers v Whitaker [1993] 4 Med. L.R. 79 (HC (Aus))

*Med. L. Rev. 76 I. INTRODUCTION

In most legal systems, a doctor can only provide treatment to a patient who has first given informedconsent to the proposed procedure. This means that the patient must not only be informed ‘in broadterms’ about the nature and purpose of the treatment offered, but also of all ‘material risks’ inherent init,1 so that she may make a rational choice. The informed nature of the decision regarding whether toaccept treatment, designed to allow the patient to make her own decision based on all relevant factsand options, can thus be seen as a gateway towards autonomy. Certainly, as this article highlights,the courts consider this to be the case.2 Without disclosure of material risks by the doctor, a patient'sdecision may not be the same as if she were in possession of all of the facts, and thus her autonomycompromised. However, it is far more difficult in practice to define what a material risk actually is inany given circumstance, and different jurisdictions adopt differing approaches regarding whether arisk should be considered material or not.

*Med. L. Rev. 77 Essentially, there are two general approaches that may be identified with regard tothe definition of a material risk: the ‘professional standard’ (still used in England but rejected inAustralia and New Zealand) and the ‘patient standard’ (a modified version of which has become thepreferred Antipodean alternative).3 The former defines a material risk as one that the ‘reasonabledoctor’ should inform the patient of, while the latter looks at the issue through the eyes of the‘reasonable patient’.4 A third option, the ‘particular patient’ standard, defines as material any risk thatthat particular patient would consider important. This is generally seen as unsuitable as a legalstandard.5 The English approach is considered to represent the most paternalistic of the availablemodels, and has been criticised as a consequence.6 Equally, the more patient-centred approach usedin Australia and New Zealand is seen as being more autonomy enhancing, and thus providing theprimacy of the patient's right to self-determination seen to be lacking in English law.7 But is thisnecessarily the case? Is it true that merely by shifting the focus of the definition of the materiality of arisk from the doctor to the patient, Australian and New Zealand courts have discovered a panacea?This article explores whether this is the case, and finds that it is not, in itself, a solution. Beforeexamining the Antipodean ‘cure’, however, it is first necessary to define our ‘problem’: the paper tigerthat is the English law regarding the disclosure of risk. Given the age of some of the major casesdiscussed in the next *Med. L. Rev. 78 sections, and the fact that the law has moved on to rely lesson professional judgment, they shall be considered only briefly.

II. CONSTRUCTING THE PAPER TIGER: THE ENGLISH DEFINITION OF A MATERIALRISK

A. Negligence or Trespass?

Medical treatment given without any valid consent, however well meaning, is treated in law as is anyother form of unauthorised touching, and constitutes a trespass to the person in civil law and assaultin criminal law. However, there may be a distinction made between treatment given in the absence ofany consent, and that given on the basis of inadequate information being provided by a medical

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practitioner to the patient. In the former, the consent is vitiated and therefore invalid, whereas in thelatter it is merely faulty. How English law differentiates between the two was considered in Chattertonv. Gerson. 8 Briefly, as long as ‘the patient is informed in broad terms of the nature of the procedurewhich is intended, and gives her consent, that consent is real, and the cause of the action on which tobase a claim for failure to go into risks and implications is negligence, not trespass’.9 It would be‘against the interests of justice’ for doctors acting in good faith to face claims in trespass.10

The result of the decision in Chatterton is that trespass has effectively been marginalised as a judicialoption for patients.11 Redress lies, in virtually all cases, in negligence, and this brings patients intocontact with the central figurehead of our paper tiger - the test for the standard of care in clinicalnegligence in English Law: the infamous Bolam test, endorsed in Chatterton as the method ofdeciding whether or not the disclosure of risks (if the action were to be based in negligence) was to beconsidered adequate.12 This test has been the focus of much academic examination and criticism,and there is no need to revisit the issue in any great detail here.13 It is sufficient to say that, in order toattain the *Med. L. Rev. 79 required standard of care expected by the law of doctors, medicalpractitioners must act in a manner ‘accepted as proper by a responsible body of medical men skilledin that particular art’.14 Unfortunately, the italicised word in the quote above was forgotten by thecourts between 1957, when Bolam was decided, and 1997.15 Rather, in those 40 years, the courtsinstead tended to hold that judges were not permitted to choose between the expert witnesses of thedefence and those of the plaintiff. This point was made abundantly and explicitly clear in Maynard,where the trial judge had preferred the evidence of the plaintiff's expert, and thus rejected that of thedefendant and found for the plaintiff. In the House of Lords, the question was whether the judge hadhad a right to do this, and it was found that he did not. Lord Scarman was particularly trenchant:

… a judge's ‘preference’ for one body of distinguished professional opinion to another … is notsufficient to establish negligence in a practitioner … If this was the real reason for the judge's finding,he erred in law … For in the realm of diagnosis and treatment, negligence is not established bypreferring one respectable body of professional opinion to another.16

This meant that it became almost impossible for plaintiffs to win cases, and that the definition of amaterial risk would be a medical matter. The absurdly low level of justification for their actions thatwas expected of doctors did not go unnoticed:

a series of judgments … have given rise to a perception that all Bolam requires is that the defendantfields experts from his or her medical specialty prepared to testify that they would have followed thesame course of management … as did the defendant. If such experts can be identified, are patentlyhonest and stand by their testimony vigorously, neither they nor the defendant will be asked to justifytheir practice. The judge will play no role in evaluating that expert evidence.17

*Med. L. Rev. 80 Nevertheless, Chatterton was not directly concerned with the materiality of risk.The pronouncements on the issue are therefore obiter. The question of how to define a material riskwas, however, to be fully considered by the House of Lords less than five years later, in the landmarkcase of Sidaway. 18

B. Sidaway and the Materiality of Risk: the Differing Approaches

The facts of Sidaway constitute a ‘classic’ informed consent scenario. Mrs Sidaway suffered recurrentpain in her shoulder, arms and neck. After over a decade of unsuccessful treatment, shewas offeredan operation to relieve the pain. Even if the operation was carried out perfectly, however, there wasan inherent risk of spinal cord and nerve damage, assessed as being between 1 and 2%. MrsSidaway claimed that she was not informed of this risk, but she consented to and underwent theprocedure. Unfortunately, the risk materialised and she was left partially paralysed. She did notcontend that the operation was carried out negligently, but that the warning of risks provided to herwas inadequate and that a material risk (the chance of nerve damage) should have been disclosed. Inessence, then, the case rested squarely on the issue of the definition of the materiality of risk--wasthe undisclosed risk material, and how do we determine that? Of the nine judges to hear the case inall courts, all were agreed that Mrs Sidaway's claim failed. This was mainly due to the fact that, as thesurgeon had died before the legal action, it was impossible to tell what advice had been given. AsLord Scarman noted, the case was ‘at best not proven’.19 Nevertheless, the judges' definitions of amaterial risk varied widely. Indeed, three differing strands of opinion are identifiable in the House ofLords; though as they reached the same conclusion, none is technically dissenting! Needless to say,this makes Sidaway a difficult case to analyse.20 The different approaches reflect how the judgesviewed the division between risk disclosure and the technical medical expertise involved in diagnosis

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and treatment.

*Med. L. Rev. 81 The judgment of Lord Diplock--or at least the way inwhich it has been perceived--isintegral to the creation of our paper tiger. It is widely considered to be the least supportive of the rightto autonomy of patients.21 The direction of his Lordship's judgment was predicated upon a refusal todistinguish between the technical and non-technical aspects of a medical practitioner's duty towardsher patient. He therefore refused to acknowledge that there was a difference between diagnosis andtreatment (as technical aspects), and risk disclosure (non-technical). Consequently, when consideringthe doctor's conduct with respect to a ‘single comprehensive duty’,22 Lord Diplock could see noreason not to apply Bolam as he would to a case in negligence.23 The application of a non-dilutedform of Bolam in 1985 meant that, just as in Maynard, as long as the defendant doctor could findsome others who would not have warned of the risk, the plaintiff could not succeed in having itdefined as material. As I demonstrate below, the other judgments proposed what appear at first sightto be judgments that are far more sensitive to patient autonomy.

Lord Scarman's judgment is generally seen as the least paternalistic. In fact, his is the only judgmentthat actually rejects the use of Bolam to decide whether a specific risk is material. He is thus the onlyjudge in Sidaway who advocated an approach similar to the Antipodean panacea. Lord Scarman'srejection of Bolam rests on his definition of risk disclosure as totally different from diagnosis andtreatment, noting that while it may be appropriate for the latter,

[i]t would be a strange conclusion if the courts should be led to conclude that our law, whichundoubtedly recognises a right in the patient to decide whether he will accept or reject the treatmentproposed, should permit the doctors to determine whether and in what circumstances a duty arisesrequiring the doctor to warn his patient of the risks inherent in the treatment which he proposes.24

Indeed, the concept of autonomy was seen by his Lordship as a ‘fundamental human right’ thatBolam was ill-suited to protecting.25 Rather, he identified the doctrine of informed consent, developedand used in some US jurisdictions and in Canada, as an alternative that would protect the rights ofpatients.26 Thus, ‘the courts should not allow *Med. L. Rev. 82 medical opinion as to what is best forthe patient to override the patient's right to decide’.27 His Lordship therefore accepted the test laid outin the American case of Canterbury v. Spence, which he credited with being a landmark judgment inthe development of the doctrine.28 Based on the premise that the patient has the right to autonomyand that he should therefore be informed of all material risks, Canterbury defines materiality as:

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 foregothe proposed therapy.29

The judgments of Lords Bridge and Templeman (Lord Keith concurring with Lord Bridge) constitutethe numerical majority in the case and the ‘middle way’ between Lord Diplock's narrow view of thecase and the expansive primacy of principle that characterised Lord Scarman's judgment. Lord Bridgerecognised, like the others, that there existed three broad aspects of a doctor's professional duties:diagnosis, treatment and advice about risks. Bolam, he continued, clearly applied to the first two. Hethus identified the issue in the case as being whether the doctor's duty with regard to advice was tobe the same as the others and, if different, how it might be defined. He considered the doctrine ofinformed consent which, interestingly, he distinguished from Bolam on the basis that it prioritisedpatient autonomy--the implication being that Bolam did not.30

His Lordship continued by rejecting the test enunciated by the court in Canterbury, stating that it was‘so imprecise as to be almost meaningless’.31 However, that was not to say that he was to accept theapproach of Lord Diplock. Rather, Lord Bridge's concern was that the court should not be deprived ofthe benefit of medical evidence--something that he saw informed consent as curtailing. He thereforedefined the giving of advice as slightly different to diagnosis and treatment, holding that materiality‘must primarily be a matter for clinical judgment’.32 This allowed him to argue that, while medicalevidence (and therefore Bolam ) should still apply, the slight distinction left the courts rather than themedical profession as the ultimate arbiters of materiality:

*Med. L. Rev. 83 [a] judge might in certain circumstances come to the conclusion that disclosure of aparticular risk was so obviously necessary to an informed choice on the part of the patient that noreasonably prudent medical man would fail to make it.33

What is interesting is the interpretation of Bolam. It is, coincidentally, the same as that that was to beapplied by Lord Browne-Wilkinson in Bolitho, but for Lord Bridge it was not meant to be applied to

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diagnosis and treatment. Rather, it was to be interpreted differently because advice about risk wasseen as slightly--but not totally--different to the other parts of medical practice. The approach taken byLord Templeman was broadly the same, though somewhat confusing as he spends very little timeactually defining what the law is. However, he too clearly held that the final arbiters of materialityshould be the courts.34

What can be seen from the above is that the judgments of their Lordships throw up several totallydifferent, and irreconcilable, approaches. Moreover, since all judges were agreed that Mrs Sidawayshould lose her case, none can be said to be dissenting. This is what makes it impossible to assign aratio decidendi to the case.35 All that can be done is to highlight the differences. Given this, what isimportant is not so much what the House of Lords decided, but how the disparate opinions were to beinterpreted by subsequent courts.

C. The Sidaway Aftermath: The Paper Tiger

Just two years after the decision in Sidaway, the Court of Appeal had a pair of opportunities tointerpret it. In two judgments, the Court of Appeal demonstrated that Bolam was in rude health, andthat the concept of patient autonomy must take second place to professional practice. The first is thedecision in Blyth. 36 Mrs Blyth was offered, consented to and received, an injection of thecontraceptive drug Depo-Provera. The drug caused significant side effects, and Mrs Blyth submittedthat, had she been warned of them, she would not have consented to its injection. Moreover, sheargued that she had asked questions and not received full answers--providing quotes from Sidawayas authority. Mrs Blyth's contention was that Sidaway made *Med. L. Rev. 84 it quite clear that therewas no discretion available to doctors when questions were asked, and that its espousal of Bolamwas to be limited to (as in the case of Mrs. Sidaway) unsought information. This was rejected by theCourt of Appeal. In a decision characterised by its lack of consideration for the patient's autonomy(Mrs Blyth's ‘rights’ are not mentioned once by either of the judges who provided substantivejudgments), it was held that Bolam should prevail even when questions are asked:

[n]either Lord Diplock or Lord Bridge [in Sidaway ] were laying down any rule of law to the effect thatwhere questions are asked by the patient, or doubts are expressed, a doctor is under an obligation toput the patient in possession of all the information … The amount of information to be given mustdepend on the circumstances, and as a general proposition it is governed by what is called the Bolamtest.37

Despite the references to the judgment of Lord Bridge, Lord Diplock's interpretation was applied. Twomonths later, the Court of Appeal revisited the issue and took the same line. The issue in Gold was afailed sterilisation.38 Mrs Gold claimed that she was not told of the risk of failure inherent insterilisation operations, nor of a less invasive alternative available (that her husband has a vasectomyinstead). The plaintiff's argument was that Bolam did not apply to non-therapeutic procedures such assterilisations, as Sidaway was concerned with therapeutic procedures. The Court of Appeal rejectedthe argument, holding that Bolam, as ‘explained by Lord Diplock’ … should be applied, and that anyattempt to distinguish between therapeutic and non-therapeutic procedures was ‘wholly unwarrantedand artificial’.39

Interestingly, in neither case is there any mention of the patient's interest in being able to make herown decision, much less support for it. Rather, the judgments are an exercise in protecting medicaldiscretion. Both cases are easy to criticise. Nevertheless, they are nothing more thanmisinterpretations of Sidaway, since they failed to distinguish between Lord Diplock's use of Bolamand that of the majority in the case. However, it is clear that Lord Diplock's interpretation of themateriality of a risk appeared to have taken a stranglehold in the English courts. This, then, is thepaper tiger of this article's title: a definition of the materiality of risk that deliberately shuns any notionof patient autonomy, privileges the medical practitioner and encourages medical paternalism. It is ascary beast. Bolam, it seemed, was incompatible *Med. L. Rev. 85 with patient choice, andprivileged a paternalistic view of the doctor-patient relationship.

However, while Bolam ran rampant in England, it was being challenged in the Antipodes.

III. INTRODUCING THE PANACEA: THE HIGH COURT OF AUSTRALIA'S REJECTIONOF BOLAM

A. Before Rogers: Preparing the Ground

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While the English courts were revelling in unabashed Bolam -mania, the courts in Australia werequietly rejecting precisely this way of looking at the issue of the materiality of risk. In this context, the‘landmark’ decision in Rogers v. Whitaker, discussed below, can be seen as the continuation of aprocess rather than a evolutionary leap.40 Indeed, the retreat from Bolam in Australia began evenbefore Sidaway, in the Supreme Court of South Australia in the 1983 case of F v. R, ultimately reliedupon by the High Court of Australia in Rogers. 41 The facts of F v. R constitute a classic ‘failedsterilisation’ scenario. A married woman who had already had three children did not want any morechildren and was advised by her doctor to undergo a sterilisation by tubal ligation. She consented tothe procedure, which was carried out properly, but was not warned of the risk (assessed as being lessthan one per cent), that the operation might reverse itself. The plaintiff's claim was unanimouslydismissed because the risk of reversal was held to be too small to be considered material. However,what is of interest to this paper is not so much the result but rather the method by which it wasreached.

*Med. L. Rev. 86 King C.J. began by stating that the issues in the case involved balancing differentinterests. Thus,

the resolution of the present case relate to the extent to which negligence in giving or omitting toprovide information … is to be determined by reference to the practice existing in the medicalprofession, and to … the weight to be attached to the patient's right to make the critical decisionsregarding his own life and welfare.42

Moreover, these interests were sometimes of such a nature that they could not help but becompeting. In particular, there was at times an inevitable ‘conflict’ between the duty of the doctor toact in the patient's best interests, and the right of the patient to make her own decisions.43 King C.J.identified the fact that English law had ‘tended to place the emphasis on the former value and inconsequence formulate the test … largely, and sometimes exclusively, in terms of the … practiceprevailing in the medical profession’.44 In the United States and Canada, conversely, there was‘greater weight on the patient's right to receive the information necessary for an informed decision’.45

The problem for King C.J. was that no Australian case had yet considered this issue. Taking it uponhimself to provide guidance, the Chief Justice formulated principles that were to become influential indetermining the scope of the doctor's duty in risk disclosure. Thus, what a careful doctor mustdisclose to a patient depended on five factors.

The first was the ‘nature of the matter to be disclosed’.46 King C.J. held that the doctor's dutyextended only to ‘matters which might influence the decisions of a reasonable person in the situationof the patient’, so that that patient could make an informed choice about whether to undergo thetreatment.47 If the risk of harm is so low or sufficiently trivial that the patient would not be influenced byit there would be no need to disclose it. The second factor, the ‘nature of the treatment’, is related tothe first.48 This provides that the more serious the procedure, the more necessary it is to keep thepatient fully informed of the risks and consequences. Thus, '[m]ajor surgery calls for special care …[with the] existence of reasonably available alternative methods of treatment … an important factor indetermining what reasonableness demands'.49 For drastic surgeries, information regarding *Med. L.Rev. 87 alternatives treatment options might be defined as material, as well as information about therisks inherent in the proposed treatment.

Factors three and four were more concerned with the patient herself. The third, the ‘desire of thepatient for information’, was based on the principle that it ‘is the right of every human being to makethe decisions which affect his own life’.50 Thus, a request for information on the part of the patientwould normally require the doctor to provide it. The exception would be if to do so would be likely toharm the patient. In such circumstances, ‘reasonable care for the patient may justify or even requirean evasive or less than fully candid answer even to a direct request’.51 However, he warned that thedoctor ‘should hesitate long’ before coming to such a conclusion.52 The fourth factor was ‘thetemperament and health of the patient’.53 This provides that a doctor might be justified in withholdinginformation about risks if she reasonably believed that the patient's mental or physical health might bedamaged by the information, or that ‘the patient's temperament or emotional state is such that hewould be unable to make the information a basis for a rational decision’.54 It is nothing more than afurther exception allowing the doctor to invoke her therapeutic privilege.

The final factor was the ‘general surrounding circumstances’.55 This acknowledges that sometimesthe extent of the duty to advise might be limited by situations such as emergencies or the absence ofopportunity ‘for detached reflection’.56 This factor seeks to include in the list a recognition of therealities of doctor-patient interactions. Sometimes, quite simply, a procedure may have to be carried

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out there and then, and there may be no time to explain the risks to the patient. This factor appears tobe similar to the principle of necessity.

This list of factors, which King C.J. held were not intended to be exhaustive, contains some elementsthat are defined as professional judgments, others that relate to the patient as an autonomous being,and others that relate to the individual patient herself. They do not determine materiality, but insteadwhether the risk should be disclosed. King C.J. used Bolam to determine materiality but did notinterpret it in the way that the English courts were doing at that time, but instead in *Med. L. Rev. 88the way that Bolitho was later to do. So, when answering the question regarding the adequacy of thewarning about risks, ‘much assistance will be derived from evidence as to the practice obtaining in themedical profession. I am unable to accept, however, that such evidence can be decisive in allcircumstances'.57 Given this, the arbiters of the materiality of risk had to be the court, rather than themedical profession:

The ultimate question, however, is not whether the defendant's conduct accords with the practices ofhis profession or some part of it, but whether it conforms to the standard of reasonable caredemanded by the law. This is a question for the court and the duty of deciding it cannot be delegatedto any profession or group in the community.58

In this, King C.J. was supported by Bollen J., who similarly concluded that '[t]he court will be guidedand assisted by the expert evidence. It will not produce an answer merely at the dictation of theexpert evidence’.59 Moreover, he cited several cases in Australia, New Zealand, Canada and Englandthat he claimed supported his opinion regarding the inconclusiveness of medical expert evidence,including Bolam itself!60 What the case demonstrates is that the materiality of risk would be defined bythe court rather than the medical profession. The latter and its evidence would guide the former, butwould be of persuasive rather than binding influence. Then, the factors would determine whether thedoctor must disclose the risk to the patient. But it is important to note that the F v. R does not rejectBolam --it only rejects old (pre *Med. L. Rev. 89 Bolitho ) Bolam. It did this because old Bolam wasseen as being inconsistent with the right of the patient to autonomy.

B. Rogers v. Whitaker: Abandoning Bolam?

To say that the High Court of Australia in Rogers wished to part company with English law would besomething of an understatement. It openly and consciously stated its rejection of the use of Bolam indetermining whether a risk should be defined as material (although, as I argue in the next section, itwas not entirely successful in that regard). The facts of the case illustrate the perceived magnitude ofthe decision. Maree Whitaker had for many years been blind in one eye. She consulted ChristopherRogers, an opthalmic surgeon, who advised her that he could offer an operation that would not onlyimprove the appearance of her ‘bad’ eye, but also potentially restore some sight to it. Mrs Whitakerconsented to the operation, which was performed. Unfortunately, not only did her eyesight in her ‘bad’eye not improve, but her other eye developed an inflammation that led to the loss of all sight in thateye, due to sympathetic opthalmia, which the court assessed as having a likelihood of 1 in 14,000 ofoccurring. Mrs Whitaker sued on the basis that the failure of the doctor to warn her of the riskconstituted negligence, as it was material. She won damages at first instance, and the defendant'sappeal was dismissed. He made the further appeal to the High Court of Australia.

The submissions to the court by the opposing barristers provide a snapshot of the approaches thatthe judges had to decide between. The appellant submitted that ‘[h]aving found that there were tworesponsible bodies of medical opinion on the issue [of whether to warn of the risk], it was not open tothe judge to choose between them’. 61 Despite qualifying statements that ceded to a ‘new’ Bolamoutlook,62 the quote makes it clear that since Rogers had found experts who would have acted as hedid, then that should be the end of the matter--an ‘old’ Bolam way of looking at things. Moreover, areference to ‘professional expertise’ with regard to warning of risks only serves to strengthen thesuspicion that the appellant was arguing that these were his decisions to make as a doctor.63 Therespondent, meanwhile, submitted that Bolam ‘does not establish that simply *Med. L. Rev. 90because there is a body of reasonable medical opinion … a practitioner who follows that opinioncannot be guilty of negligence’.64 Indeed, ‘[i]t is the patient's decision whether to have an operation’.65

So here, then, were the battle lines. On the one hand, Rogers was arguing that the issue of riskdisclosure was just another part of medical practice involving medical skill, and should therefore betreated as such. Whitaker, conversely, submitted that the issue was one of the patient's right toautonomy, and not therefore suitable to be considered a medical decision.

A majority judgment was delivered by Mason C.J., and Brennan, Dawson, Toohey and McHugh J.J.

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Gaudron J. delivered her own judgment, but adopted substantially the same approach as the majority.All found in favour of Mrs Whitaker. The majority began with a consideration of the Bolam principle,and recognised that the House of Lords in Sidaway had been split regarding its application. Thus, itwas noted that Lord Diplock ‘gave the principle a wide application’; while Lords Bridge andTempleman asserted the court's authority as the ultimate arbiters of what was and what was notreasonable.66 However, the majority continued by highlighting what it saw as the major shortcomingon Bolam in the context of risk disclosure:

one consequence of the application of the Bolam principle … [in this context] is that, even if a patientasks a direct question about the possible risks or complications, the making of that inquiry wouldlogically be of little or no significance ; medical opinion dictates whether the risk should … bedisclosed and the express desire of a particular patient for information … does not alter that opinionor the legal significance of that opinion.67

For this reason, it argued that statements by various judges in Sidaway requiring that questionsshould be answered fully ‘indicate a shortcoming in the Bolam approach’.68 It also asserted thatBolam had already come under pressure in the Australian courts, even in the context of diagnosis andtreatment.69 It held that in the realm of warning about risks, the courts had gone further and‘discarded’ Bolam --the reason being the primacy of the principle of autonomy.70 It would seem that*Med. L. Rev. 91 when the court referred to Bolam, they meant ‘old’ Bolam, particularly since itquoted King C.J. in F stating that the medical profession must conform to legal rather thanprofessional rules as evidence of ‘discarding’ Bolam. 71 Its first principle was that ‘all medicaltreatment is preceded by the patient's choice to undergo it’.72 However,

the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.Because the choice to be made calls for a decision by the patient on information known to themedical practitioner but not to the patient, it would be illogical to hold that the amount of information tobe provided by the medical practitioner can be determined from the perspective of the medicalpractitioner alone or, for that matter, of the medical profession.73

Thus was Bolam 's fate apparently sealed, with the court only pausing to note that whether anoperation was carried out to the requisite standard of care was a decision ‘of a different order’ to oneregarding whether the patient had received sufficient information.74 Since Bolam, as interpreted by thecourt, could not be trusted to be sensitive to patient autonomy, or even to force doctors to answerquestions fully, it could not be involved in the legal test with regard to materiality. The High Court,therefore, constructed its own test for materiality:

a risk is material if, in the circumstances of the particular case, a reasonable person in the patient'sposition, if warned of the risk, would be likely to attach significance to it or if the medical practitioner isor should be reasonably aware that the particular patient, if warned of the risk, would be likely toattach significance to it.75

The test consists of two parts. The first, that of the ‘reasonable person in the patient's position’, wasdefined by the court as objective. This, like the subjective criteria, would be decided by reference tothe factors set out in F. v. R. Its reach would depend on what was meant by ‘in the patient's position’and, in particular, the question of what factors the courts may take into account, and it is importantthat this part of the test is not oversold. Perhaps surprisingly, the High Court in *Med. L. Rev. 92Rogers did not really consider what was meant by the ‘patient's position’--a fact made clear inRosenberg, where the case transcript shows Gummow J. questioning the appellant's barristerregarding the precise meaning of the phrase, and whether it constitutes ‘attitude of mind’ or ‘economiccircumstances’.76 The reply is that the issue had not been considered in Australia, but that it had beenin Canada in the case of Arndt v. Smith. 77 Despite identifying this problem, the court in Rosenbergfailed to address the issue in the judgment. From what it is possible to see from Rogers, it wouldappear that it was meant to be interpreted quite narrowly. Although the court suggested that MrsWhitaker might have been successful under this ground, this was due to the physical characteristic ofhaving one good eye rather than any subjective preference on the part of the patient.78 Indeed, thisapproach is consistent with that of the Canadian court's decision in Arndt, where although subjectivecriteria (such as the patient's ‘reasonable beliefs, fears, desires and expectations’) would beconsidered, they would ‘usually be revealed by the questions posed’, and thus depend on the patientasking questions, as Mrs Whitaker did.79

The second part of the test, that a risk is material if the doctor ‘is or should be reasonably aware’ thatthat particular patient would find it significant, is subjective, and indeed would appear at first glance to

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bring the legal duty towards that of the allegedly unattainable ‘particular patient’ test. In applying thetest to the facts in the case before them, the court found, unanimously, that the risk was to beconsidered a material under the subjective criteria. This is because the plaintiff asked questions‘incessantly’, and was most concerned that her ‘good’ eye not be damaged.80 The day before theoperation, she even enquired as to whether something could be put over her ‘good’ eye to cover itand ‘ensure that nothing happened to it’.81 In this context, it was held that Mrs Whitaker's failure to askthe specific question that would require the answer was irrelevant. To decide otherwise would havebeen to punish her for not being ‘sufficiently learned’ to ask the precise question about a risk that shehad not been informed of and could not be expected to know about--a state of affairs described by themajority as ‘curious', and '[demonstrating] vividly the dangers of applying … Bolam ’.82 Thus, it wasenough that she made it clear that she was *Med. L. Rev. 93 concerned about the welfare of her‘good’ eye, and the doctor should have informed her of the risk to it as a consequence.

Here then is our panacea. Bolam was perceived by Rogers to be inconsistent with the patient's rightto make her own decision, and to take too much power away from the court itself regarding thedefinition of the standard of care. So, the court wanted to dispense with it. Moreover, it recognisedthat risk disclosure is not an area of practice requiring technical medical skill, and thus distinguishedit, as Lord Scarman had done in Sidaway, from diagnosis and treatment. In so doing, it had definedas material a risk that was assessed as having only a 1 in 14,000 chance of materialising, and did sounder both the subjective arm of its new test and, most probably, would have done so under theobjective arm also if it had had to. Patient autonomy seemed alive and well, and doctors should bequaking in their boots.

IV. MEANWHILE, IN NEW ZEALAND: THE CODE OF PATIENTS' RIGHTS

Bolam fared little better across the Tasman. The New Zealand Code of Health and Disability ServicesConsumers' Rights came into effect in 1996. It places ‘heavy emphasis on information disclosure andinformed consent’.83 Right 6, which deals with information disclosure, is said by Manning to“‘deliberately adopt” the reasonable patient test … [and] reject Bolam ’.84 Entitled the ‘Right to be FullyInformed’, it contains four parts.85 The first states that every consumer,

has the right to the information that a reasonable consumer, in that consumer's circumstances, wouldexpect to receive, including -

(a) An explanation of his or her condition; and

(b) An explanation of the options available, including an assessment of the expected risks, sideeffects, benefits, and costs of each option; and

(c) Advice of the estimated time within which the services will be provided; and

(d) Notification of any proposed participation in teaching or research, including whether the researchrequires, and has received, ethical approval; and

*Med. L. Rev. 94 (e) Any other information required by legal, professional, ethical, and other relevantstandards; and

(f) The results of tests; and

(g) The results of procedures.86

The second part provides that before ‘making a choice or giving consent’, consumers have the right to‘the information that a reasonable consumer, in that consumer's circumstances, needs to make aninformed choice or give informed consent’.87 The third states that ‘honest and accurate answers’ mustbe given to questions, including those concerning the qualifications and identity of the provider; therecommendation made and the ‘results of research’.88 The final part gives consumers the right to awritten summary of the information provided.89

As can be seen, Right 6 seems at first glance to consist of the first, objective, part of the Rogers test,but with additional, wide-ranging details being classed as material, such as information about thedoctor's qualifications and alternative treatments. It would also appear that the word ‘including’ in thefirst part of Right 6 means that the list is not intended to be exhaustive, and thus the Commissioner(who adjudicates on whether the Code has been breached) may define material as any risk that shesees fit.90 In this regard then, despite not containing a subjective element, Right 6 lacks little in

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comprehensiveness in comparison to Rogers. Moreover, even the lack of the subjective criteria is notconclusive, as the ‘in the patient's position’ proviso can be used to give effect to particular patients'subjective views.91 Thus, Manning argues that ‘[t]he closer the focus on the individual circumstancesof the particular patient, the closer in practice the test in Right 6 approaches a subjective one’.92

Indeed, she even identifies instances where the Commissioner has taken precisely this approach.93

That said, it remains the case that the unreasonable or idiosyncratic patient *Med. L. Rev. 95 doesnot have her needs catered for, unless she asks questions. Ultimately, the Code's provisions allowthe Commissioner to adopt an expansive approach to information disclosure:

[the Code] recognises that patients are likely to want a wider range of information in making decisions… such as an explanation of alternative treatments. An important development [for example] is thecurrent Commissioner's endeavour to develop a duty to provide fair and balanced information, basedon objective data, where available. Where the provider recommends a complementary or innovativetreatment s/he believes is effective, the patient should be told that its efficacy is not evidence-basedand receive an explanation as to why the provider nevertheless recommends it.94

Bolam, then, has suffered various apparent defeats. In Australia, the High Court has affirmed itsrejection of Bolam in Rosenberg v. Percival, and there would seem to be no going back. In NewZealand, Bolam was consciously rejected by the Code, which prefers an approach that does not, onthe face of it, go as far as Rogers, but makes up for this in other ways. Even in England, as discussedbelow, the courts have sought to distance themselves from Bolam, casting envious glances at theAustralian approach. The New Zealand Code also highlights a deficiency in our panacea--its focus onrisks results in a narrow focus. As Skegg notes, the ‘provision of information is of limited value in theabsence of the preconditions of effective communication’.95 To this end, Right 5(1) of the NewZealand Code provides that consumers have ‘the right to effective communication in a form,language, and manner that enables the consumer to understand the information provided’. Right 5(2)ensures that this is done in the context of ‘an environment that enables both consumer and providerto communicate openly, honestly, and effectively’. However, this has not been recognised by thecourts in England.

V. AFTER ROGERS : NODS, WINKS AND REVISIONISM

After the decision in Rogers, there was to be a rush to emulate it. Less than a decade later, the HighCourt of Australia itself had an opportunity to reconsider its approach to risk materiality in the case ofRosenberg v. Percival. 96 Rogers was unconditionally supported, and any *Med. L. Rev. 96 ‘forlornhopes’ that remained that the court would reject its previous ruling were dashed.97 In a judgment richwith academic insight and reflection, Kirby J. noted that ‘few today argue against the line of authorityrecognised in Rogers ’.98 The court did expand on the practical application of the test in Rogers, andfor this reason we shall return to it in the next section. However, the law in Australia became, andcontinues to be, settled in favour of the Rogers approach--no surprise since, as I argued earlier, thejudgment was itself the result of evolution rather than revolution. In the meantime, courts in Englandhave edged away from our paper tiger.

Several decisions in the English lower courts have suggested that the Rogers definition of themateriality of risk was gaining currency with judges. The most totemic are the trio of McAllister v.Lewisham and North Southwark HA, Smith v. Tunbridge Wells and Pearce v. United BristolHealthcare NHS Trust. 99 This is because the first two, decided before Bolitho and in the shadow ofRogers, rejected expert evidence on behalf of the defendants and found for the plaintiffs. The latter isimportant because it was the first case since Rogers to reach the Court of Appeal in England. In allthree cases, the law was wrenched back from the clutches of Blyth and Gold, and led towards ourpanacea. In McAllister, the judge found that the failure to disclose a risk of sensory deficit wasunreasonable and therefore negligent despite evidence on behalf of the defendant that other doctorswould not have warned of it. In reaching that conclusion, Rougier J. not only quoted all threesubstantive Bolam ite judgments in Sidaway --including Lord Diplock's, with revisionism dictating thathis judgment was substantially the same as those of Lords Bridge and Templeman--but also assertedand utilised his ‘new’ Bolam power to choose between medical experts. Moreover, particularly giventhe autonomy-free zones that constituted the judgments in Blyth and Gold, the notion that ‘a patient isentitled to be given enough information on the risks of an operation to allow him or her to exercise abalanced judgement; after all, it is their life that is going to be affected’, signified a *Med. L. Rev. 97welcome change of emphasis away from ‘old’ Bolam and towards its ‘new’ interpretation.100

Less than half a year later, another case highlighted the shift away from the ‘old’ Bolam paper tiger,this time with a clearer nod towards our panacea. In Smith, as with McAllister, quotes from Sidaway

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were provided from all three judges comprising the Bolam ite majority.101 Furthermore, once again thejudge emphasised Lord Bridge and Templeman's assertions that the court may choose betweencompeting strands of medical evidence, and that the patient had a right to make treatment decisionsfor herself.102 Yet most important are the extensive quotes from Rogers provided in the judgment.Almost half a page of quotes are given, outlining its objection to Bolam, and providing its own test formateriality. This was, seemingly, summarily dismissed by Morland J., who held simply that ‘it is thedecision in Sidaway and the test in Bolam which I must, and do, apply’.103 Given the support for a lessrestrictive view of Bolam, however, and the assertions of the patient's right to choose and the court'sto decide on materiality, such substantial quotes from Australia may perhaps be seen as more of anod and a wink, suggesting to higher courts a change in the law might be appropriate. As Puxonnoted, the reasoning of the judge was similar to that used in Rogers. 104

The conflation of the reasonable doctor and the reasonable patientwas to be completed some fiveyears later in the case of Pearce. In that case, Lord Woolf continued the revisionist trend by statingthat the ‘views of the majority most clearly appear from the speech of Lord Bridge … However, LordDiplock also gave a speech, which adopted the same approach of that of Lord Bridge’.105 Quoteswere given, once again, from all three Bolam ite judgments, which were presented as sayingsubstantially the same thing. However, Lord Woolf then appeared to conflate the reasonable doctorand reasonable patient tests:

if there is a significant risk which would affect the judgment of a reasonable patient, then in the normalcourse it is the responsibility of a doctor to inform the patient of that significant risk, if the *Med. L.Rev. 98 information is needed so that the patient can determine for him or herself as to what coursehe or she should adopt.106

This is a somewhat amorphous statement. On the one hand, it may be interpreted as stating that thereasonable doctor will disclose everything that the reasonable patient would want to be told of. On theother hand, it may be suggested that the use of the word ‘significant’ means that the reasonabledoctor must disclose only risks that are both ‘significant’ and ‘material’ (information that the patientneeds to make an autonomous choice). Alasdair Maclean, for example, has argued that significanceand materiality are divorced from each other, and ask different questions. ‘Significance’ concerns thenormative evaluation of the risk, whereas ‘materiality’ concerns the separate, sociological issue ofwhether the risk was reasonable and patient's decision might be affected by its disclosure.107 Despitethe second option appearing most logical from the wording of the quotation, I remain of the belief thatLord Woolf intended the former. This is because later in the judgment he held that ‘where there iswhat can realistically be called a ‘significant risk’, then, in the ordinary event … the patient is entitledto be informed of that risk’--with out mention of any separate requirement of materiality.108 This view isshared by the English Court of Appeal in Wyatt v. Curtis and the Supreme Court of Ireland inFitzpatrick v. White, which viewed the words ‘significant’ and ‘material’ as interchangeable.109 Bothrequire the same information to be disclosed and, in both cases, medical evidence is useful but notdecisive. Moreover, the factors in F v. R, accepted in Rogers, have their own version in Pearce withLord Woolf stating that a doctor,

has to take into account all the relevant considerations [in determining what risks to inform patientsof], which include the ability of the patient to comprehend what … she has to say … and the state ofthe patient at the particular time, both from a physical point of view and an emotional point of view.110

It would therefore seem that there has been a significant shift in English law away from our papertiger, and even envious glances cast at our panacea. Certainly, the pull of Bolam becomes everweaker in *Med. L. Rev. 99 England. But if Rogers is adopted, will it make any difference? Indeed,does it actually contain any significant differences in practice?

VI. ROGERS AND SIDAWAY : MORE SIMILAR THAN DIFFERENT

Perhaps predictably, Rogers was controversial. Olbourne considered it to impose ‘an onerous dutyupon the doctor who will now find it increasingly difficult to comply with legal (and ethical) obligations’.111 He also warned of ‘floodgates … opening’;112 and that ‘the pendulum may have swung too far’.113

Meldelson cited a Medical Defence Union survey from 1997, which found that 98% of doctors were‘more concerned’ than in the past about being sued by patients, and that ‘failure to warn’ was secondonly to ‘failure to diagnose’ as the most probable source of the complaint.114 Furthermore, she endedthe article with a warning that if the law was not moderated,

the High Court of Australia will need to consider the balance between protecting the interests of

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individual patients and the interest of the community in having a viable medical profession.115

In Rosenberg, Kirby J. identified no less than eight common criticisms of Rogers. 116 Some arepractical in nature, such as that warning about small risks is simply not effective,117 and that somepatients simply do not want to be unsettled by ‘unnecessary disclosures’.118 Others are moredoctrinal, such as that the test can easily become a ‘prop to disappointed patients’ resulting in theimposition of ‘unrealistic and unreasonable professional obligations’,119 and the consequences of theinevitable rise of defensive medicine, that being that many doctors *Med. L. Rev. 100 would leavethe profession.120 But is the decision in Rogers really that groundbreaking? As Callinan J. drylycommented in Rosenberg, after noting the ‘consternation’ caused by Rogers, ‘[n]o doubt themanufacturers of bottled drinks viewed the reasoning in the House of Lords in Donoghue v.Stephenson in the same way’.121 I would contend that Callinan J.'s sanguine reflection is far closer tothe true effect of Rogers than the more doom-laden outpourings quoted in the preceding paragraph.This is because, in reality, Rogers does not actually discard Bolam totally. Rather, the court merelyrejected ‘old’ Bolam, and specifically the idea that, once the defendant had found a body of opinionthat would do as she had done, then that was the end of the matter and the judge was unable todeclare her conduct negligent. As Gleeson C. J. noted in Rosenberg, ‘the relevance of professionalpractice and opinion was not denied [in Rogers ]; what was denied was its conclusiveness'. 122

Equally, as demonstrated above, the court in F v. R, which was relied upon in Rogers, was specific inits rejection of that interpretation of Bolam, and was in fact at pains to point out that medical evidencewas not in itself being rejected. King C. J. held that '[i]n many cases an approved professionalpractice as to disclosure will be decisive’.123 Bollen J. expressed a similar sentiment, noting thatexpert evidence ‘will assist the court’ and that the court will ‘afford great weight’ to it.124 All that wasstated in F was that the courts would refuse to ‘produce an answer merely at the dictation of theexpert evidence’ because then the court would ‘abdicate its duty to decide … whether in law a dutyexisted’.125 Exactly the same approach was adopted in Rogers itself, where it should be noted thateven the plaintiff's submission states only that Bolam ‘does not establish that simply because there isa body of reasonable medical opinion, that a practitioner who follows that opinion cannot be guilty ofnegligence’.126 This was reflected in the judgment of the majority, who were at pains to point out thatmedical evidence was still relevant even as they spoke of abandoning Bolam :

*Med. L. Rev. 101 [In Australia], particularly in the field of non-disclosure of risk and the provision ofadvice and information, the Bolam principle has been discarded and, instead, the courts haveadopted the principle that while evidence of acceptable medical practice is a useful guide for thecourts, it is for the courts to adjudicate on the appropriate standard of care after giving weight to ‘theparamount consideration that a person is entitled to make his own decisions about his life’.127

It even quoted with approval the Supreme Court of Canada in Reibl v. Hughes declaring that expertevidence ‘will … have a bearing on materiality but is not a question that is to be concluded on thebasis of the expert medical evidence alone’.128 But how, then, can this be the case when the courtitself claimed to be ‘discarding’ Bolam, and instead basing the test on the patient rather than thedoctor ? The answer lies in the factors identified by King C. J. in F v. R relating to the doctor's duty todisclose, which essentially constitute exceptions to that duty. All but one of those factors containssome element where medical evidence is relevant--sometimes even crucial. The exception is the firstcategory, the nature of the matter, where the Chief Justice held that the doctor must disclose all risksthat a reasonable person might be influenced by. In the second category, the nature of the treatment,King C. J. stated that the more drastic the treatment, the more necessary it is to keep the patientinformed. Moreover, '[t]he existence of reasonably available alternative methods of treatment must bean important factor in determining what treatment demands'.129 The reasonable availability oftreatment is clearly an area where medical evidence is of the utmost relevance.

The next category is the patient's desire for information. As noted earlier, this entitles a doctor toprovide ‘evasive or … less than fully candid’ answers to questions on the rare occasions that thedoctor ‘in the exercise of his skill and judgment ’ judges that the patient is asking not out of a desire tofind the answer, but instead in order to seek reassurance.130 He continued by holding that the doctorshould hesitate long before doing this, but added that ‘[v]olunteering information is another matter.This clearly involves the exercise of careful professional judgment ’.131 Again, it is clear that medicalevidence is relevant. It appears to be critical to the issues described under this heading. The *Med. L.Rev. 102 fourth circumstance concerns the patient herself. This allows the doctor to withholddisclosure of risk if she ‘judges on reasonable grounds that the patient's health, physical or mental,might be seriously harmed by the information’.132 This is the infamous ‘therapeutic privilege’ that isprevalent in jurisdictions that use the prudent patient test, and medical evidence is decisive in

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determining whether the doctor was justified in invoking it. The final category considers the generalsurrounding circumstances. This suggests something similar to the principle of necessity, but theChief Justice also pointed out that the court will also look at ‘the existence of alternative sources ofadvice’.133 If a doctor may evade a duty to disclose by claiming that there was an alternative source ofadvice, then it can only be presumed that must be a reasonable one--and again we return to medicalevidence. Furthermore, just after he outlined the five circumstances, King C. J. explicitly stated thatmedical evidence would have a large role to play in determining materiality:

The above discussion is not meant, of course, to be exhaustive of the factors which must be takeninto account. Finally the question must be: ‘Has the doctor acted reasonably in the exercise of hisprofessional skill and judgment, or, in the way that Bristow J. put it in Chatterton v. Gerson, in the waya careful and responsible doctor in similar circumstance would have done?’ In answering thisquestion much assistance will be derived from evidence as to the practice obtaining in the medicalprofession. I am unable to accept, however, that such evidence can be decisive in all circumstances.134

What can be seen is that there are many loopholes, exceptions and discretions available within thetest in F --and therefore Rogers --to make judicial talk of ‘abandoning Bolam ’ less than persuasive.With Bolam less than vanquished, then, our panacea suddenly looks less groundbreaking. Indeed, itmay be argued that the House of Lords in Sidaway does exactly the same thing, in the sense that theBolam ite majority asserted the right of the court to declare material risks that medical professionalswould not disclose. Lord Bridge's explicit reference to this point is worth repeating:

[E]ven in a case where … no expert witness in the relevant medical field condemns thenon-disclosure as being in conflict with accepted and responsible medical practice, … the judge mightin certain circumstances come to the conclusion that disclosure of a particular *Med. L. Rev. 103 riskwas so obviously necessary to an informed choice on the part of the patient that no reasonablyprudent medical man would fail to make it.135

Lord Templeman was of the same view, several times in his judgment referring to the court's right todecide on the question of materiality. Of course, Lord Diplock infamously espoused an ‘old’ Bolamapproach, but English law has, albeit belatedly, moved away from the dicta expressed in Blyth andGold that his judgment could be equated with those of the rest of the Bolam ites in Sidaway. Thus, themajority in Sidaway, despite following Bolam, was asserting what is essentially the same as theobjective strand of the Rogers test--that while medical evidence is relevant to the determination of theduty to disclose, it is not decisive. Given this, then, the notion of Bolam being ‘discarded’ by the courtsin Australia rests on the subjective arm: that a risk is material if the doctor ‘knows or ought to haveknown’ that that specific patient would regard the risk as important. Once again, Sidaway comparessurprisingly well.

This is because, in order for the subjective arm in Rogers to bite, it is first necessary for the patient tocommunicate to the doctor the facts that put her in possession of information that must beconsidered. To give an example, if the patient is a keen amateur football player, and thus a small riskin knee joint mobility might be of significance to her, our doctor cannot know unless she is told. In thisregard, actions by the patient are required to trigger the need for knowledge in the medicalpractitioner. Thus, while Gummow J. in Rosenberg held that questions were not the only way ofsatisfying the subjective limb, stating that there are a ‘multitude of potential circumstances’ (none ofwhich he ventured to enunciate) where a court might find liability, it is clear that in almost all situationsit is through questioning that the patient will make the significance of a risk apparent to the doctor.136 Itis on the basis of the patient's ‘keen interest’ in and ‘incessant’ questioning about the procedure thatwas the basis of the doctor's liability in Rogers itself.137 In this way, then, the subjective limb of Rogerswill almost invariably be triggered by an interaction between doctor and patient--such as that soughtby the New Zealand Code.

Again Sidaway compares well, with the Bolam ite majority unanimous in its view that, when questionsare asked by the patient they should be answered fully, and in this occasion Bolam is a useful toolrather than a *Med. L. Rev. 104 hindrance. Lord Bridge was unequivocal regarding the answering ofquestions. He stated simply that

when questioned specifically by a patient of apparently sound mind about risks involved in a particulartreatment proposed, the doctor's duty must, in my opinion, be to answer both truthfully and as fully asthe questioner requires.138

Equally, for Lord Templeman, the issue was clear:

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‘Mrs Sidaway could have asked questions. If she had done so, she could and should have beeninformed that there was an aggregate risk of between 1% and 2% of some damage … which mightvary from irritation to paralysis’.139

Even Lord Diplock was of the opinion that the patient's asking of questions should elicit an honest andfull answer, noting that the purpose of the law was to protect the autonomy of the patient:

it is my right to decide whether any particular thing is done to my body, and I want to be fully informedof any risks there may be involved of which I am not already aware from my general knowledge, sothat I may form my own judgment whether to refuse the advised treatment or not.

No doubt, if the patient in fact manifested this attitude by means of questioning, the doctor would tellhim whatever it was the patient wanted to know.140

The quotes in the previous paragraphs refer to questioning, and thus the part of the Rogers testwhere the doctor knows that the patient wants the information. In terms of risks that the doctor 'oughtto know' that the patient wants to know, Bolam can be a help rather than a hindrance. This is becausealthough the ‘reasonable doctor’ test refers to doctors, it does not mean that it is totally insensitive topatients. So, if we reconsider the case of the amateur footballer who might suffer a loss of knee jointmobility, if the doctor knows that the patient would consider joint mobility important, a court may findthat it is a risk that the reasonable doctor must make the patient aware of. If interpreted in this way, ithas the advantage over the reasonable patient test of allowing different risks to be held by the court tobe material for different patients--thus allowing a flexibility which, almost counter-intuitively, makes itmore respectful of the patient's autonomy. Moreover, it does so more than a generic ‘reasonablepatient’ test, as the ‘reasonable *Med. L. Rev. 105 patient’ is not a keen amateur footballer, andwould thus not require that the information be disclosed. In addition, this would have support from theGeneral Medical Council's (GMC's) ethical guidance on the subject of risk disclosure.141

VII. BOLAM : ENHANCING PATIENT AUTONOMY?

The above demonstrates that our paper tiger--the restrictive interpretation of Sidaway in Blyth andGold --is based on a false premise. Sidaway in no way supports what the Court of Appeal in thosecases held that it did. Rather, there is much in the judgments in Sidaway, even in the speech of LordDiplock, which is similar in effect to what was decided in Rogers. The ‘problem’ with Sidaway, asdefined by Rogers and by some commentators, has been Bolam itself. Nevertheless, Rogers --ourpanacea--does not make medical evidence irrelevant; it just abandons its decisiveness. In this regard,it is little different to the ‘new’ Bolam approach adopted by the English courts in cases such as Smithand Pearce.

Indeed, Bolam can have advantages in helping to raise standards, not least because the medicalethics in the area are extremely stringent. The General Medical Council, which has sole authority inEngland to hold the registration of doctors and has a statutory power to give ethical advice, covers theissue of informed consent in its new guidance on consent.142 Paragraph 7 considers the amount ofinformation to be given to patients, and it begins by noting that the amount of information that shouldbe made available to patients will vary according to individual circumstances. These include thepatient's ‘wishes, needs and priorities', her level of knowledge and understanding of her condition, thecomplexity of the treatment and the level of risk involved. Paragraph 9 then lists information thatpatients may need to be informed of. These include not just information about risks but also other,wider factors such as whether doctors in training will be involved, whether the procedure willnecessitate lifestyle changes in future, the existence of alternatives, including those that are notavailable at the facility that the patient is currently in, reminders that patients have the right to seek asecond opinion.

The ethical imperative on the part of the doctor, however, is to communicate with the patient ratherthan just list the risks inherent in the treatment. Thus, the general principles listed at the beginning ofthe guidance require doctors to listen to and respect patients' views, and also to *Med. L. Rev. 106discuss with patients their diagnosis, prognosis and treatment options.143 The key principle in Part 1 ispartnership, and this is emphasised in Part 2 when the guidance states that the 'exchange ofinformation between doctor and patient is central to good decision-making’.144 Furthermore, doctorsare told that they should ‘explore’ the issues with patients, ‘listen to their concerns, ask for andrespect their views, and encourage them to ask questions’.145 This requirement to engage with thepatient goes beyond what English law demands of doctors, in that it proposes a model of partnership,discussion and exchange, rather than a simple description of the risks involved in treatment.

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However, the guidance also exposes the deficiencies in the Rogers approach, in that the latter placesno obligation on the doctor to engage the patient in discussion before questions are asked--it isinstead another version of English law's requirement to list risks--and it is therefore up to the patient totrigger the subjective limb of the Rogers test. The GMC guidance, on the other hand, demands all ofthis with respect to unsolicited information. It is, in this regard, much closer to what the New ZealandCode envisages. The advantage of the GMC document is that it contains this breadth that Rogerslacks. Ironically, it is through the medium of Bolam that this enhancement to patient autonomy may beachieved.

How might it be possible, then, to use the GMC's ethical guidance as the legal standard and thusutilise Bolam in the way that I have described? The most obvious (if slightly glib) answer is that all thatit would take is judicial will. The guidelines are there, and they are in theory an expression of what theGMC expects from its doctors. Moreover, the GMC makes it clear that doctors should expect to bejudged by the standards outlined in such documents.146 It would not be unreasonable to expect thatthe law held doctors to that. The courts could simply say, if they so wished, that a reasonable doctorfollows guidelines. Therefore, a doctor who fails to find out about her patient and their preferences isnot following a ‘responsible’ body of medical opinion, and would thus be vulnerable to a Bolithofinding of illogicality even if she found other doctors who would say that they would have done as shedid.

Indeed, the question of using guidelines to ascertain standards of care, particularly in this age ofincreasingly evidence-based practice, is hardly new.147 Moreover, the traditional objection to theinflexible use of *Med. L. Rev. 107 guidelines to define the legal standard of care would not apply inthe area of risk disclosure. As Samanta et al note, the principal objection is that strict adherence tothe guidelines ‘might fetter clinical discretion and autonomy and define too inflexible or unrealistic astandard for clinical practice’.148 Yet, this ‘problem’ is, at least to this author, inherent only in clinicaldecisions. Owing to the fact that risk disclosure does not involve a matter of technical medicalexpertise, but may instead be defined as ethical, it is reasonable to state that the guidelines must befollowed unless there is a good reason for not doing so. Indeed, it is precisely this lack of a technicalmedical aspect to risk disclosure that has encouraged judges in England--from Lord Scarman on--toreject the constraints of ‘old’ Bolam, even before Bolitho, and make themselves the ultimate arbitersof materiality. This article argues only that the use of GMC guidelines is something that the courtsmight do if they were so minded. Yet, it is a way through which doctors might be judged by the ethicalstandards set by the GMC, using Bolam in order to do so.

VIII. CONCLUSIONS

This article has argued that the paper tiger of the title is not the monster that it is portrayed as being.Its image is predicated on the adoption of the most restrictive interpretation possible of Bolam, anapproach eradicated by subsequent English courts. Equally, our panacea is not the cure-all that it ispresumed to be. Indeed, it does not even dispense with Bolam as it claims to. Rather, it looks at risksthrough the eyes of the reasonable patient instead of the reasonable doctor, and is far less flexiblethan its predecessor, despite its superficial nods towards greater autonomy. Yet, herein lies theproblem: both the English and Australian rules for risk disclosure only go so far as trying to ascertainwhat risks exist that the patient should be told about, and thus simply ask whether the doctor haswarned the patient of them. They do not prioritise, unlike the New Zealand Code or the GMCguidelines, communication between doctor and patient.

This has been recognised by Maclean who notes that, ‘the law effectively restricts consent to its rolein granting the necessary permission to justify healthcare interventions’.149 Patients are essentiallyabandoned to their own decisions, right or wrong. Nowhere is this better *Med. L. Rev. 108demonstrated than in the recent case of Al Hamwi. 150 The plaintiff had sought amniocentesis to testfor Down's syndrome, a history of which there was in the family, with a view to aborting the foetus ifthe test were positive. However, her rudimentary grasp of English meant that she misunderstood whatshe was told, and she left the session with her doctor believing that the test carried a 75% chance ofharming the foetus, and so changed her mind and did not have the amniocentesis.151 The court heldthat it would be ‘too onerous’ a duty to require doctors to ensure that patients had understood theinformation.152 The judge in the case failed to understand that the patient's autonomy would demand‘rationality rather than just self-determination … [and] knowledge not information’.153 Mrs Al Hamwi'sautonomy was compromised--despite receiving adequate information--because she did not make thedecision that she wanted to make due to the failure in communication. The focus on risk disclosurerather than interaction in both English law and our panacea means that it misses the target in terms of

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the maximisation of autonomy. In fact, the New Zealand Code's emphasis on alternatives, and theGMC guidance's encouragement of communication between doctor and patient, would have been farmore helpful in protecting Mrs Al Hamwi.

The ironic part of this is that, particularly in light of the GMC's comprehensive guidance, Bolam is farmore likely to be a part of the solution than the problem. Even if the Australian approach does not‘discard’ Bolam as it claims to, it equally does not solve the problems in English law as it is assumedto. By using Bolam to acknowledge the guidance as a ‘gold standard’ that the reasonable doctorshould follow, the law could do far more to protect patient autonomy than by drifting into the rathercosmetic changes that the Australian model would bring. Of course, this would leave the law as ahostage to fortune with regard to the continued excellence of the guidance, but in the short term atleast it would make Bolam supportive of patients' autonomy for once. That would indeed be a bigchange.

School of Law, University of Leicester. I would like to thank the British Academy for funding to go toAustralia and New Zealand to carry out the research for this article. I would also like to extend mythanks to the Universities of Melbourne and the Otago, who hosted me and made me feel welcome,and in particular to Professors Mark Henaghan and Peter Skegg, and Associate Professor ChristianWitting for all their help. Finally, my thanks to Professor Mark Bell for his useful comments on thispaper, and the Law Department at the University of Dundee, whose comments after my staff seminarthere were most useful, particularly Professor Pam Ferguson and Dr Alasdair Maclean and the editorand anonymous reviewers at the Medical Law Review.

Med. L. Rev. 2009, 17(1), 76-108

1.Chatterton v. Gerson [1981] 1 All E.R. 257. As long as the former is complied with, any action against a doctor should be in negligencerather than trespass. This point and its implications are considered in the next section.

2.Whether it is actually so is more open to question. See, for example, N. Manson and O. O'Neill, Rethinking Informed Consent in Bioethics(Cambridge University Press 2007) for what might be termed a revisionist view, and K. Veitch, The Jurisdiction of Medical Law (Ashgate2007), who argues convincingly that the form of autonomy assumed by academics to be practised by the courts is different to the realityof judicial decisions, and rest on a misinterpretation of Kant.

3.See J.K. Mason and G.T. Laurie, Mason and McCall Smith's Law and Medical Ethics, 7th edn (Oxford University Press 2006) at paras10.106-10.110.

4.See s.III(B)). In recent years, New Zealand law, which did not overtly espouse the subjective part of the Australian test, has movedtowards doing so (see J. Manning, ‘Informed Consent to Medical Treatment: The Common Law and New Zealand's Code of Patients’Rights' (2004) 12 Med. L. Rev. 181).

5.See Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All E.R. 643, 654, H.L. per Lord Scarman.

6.See, for example, M. Brazier, ‘Patient Autonomy and Consent to Treatment: The Role of the Law’ (1987) 7 Legal Studies 149; M. Jones,‘Informed Consent and Other Fairy Stories’ (1999) 7 Med. L. Rev. 135; I. Kennedy, ‘The Patient on the Clapham Omnibus’ in I. Kennedy(ed.), Treat Me Right: Essays on Medical Law and Ethics (Oxford University Press, 1991); M. Brazier and J. Miola, ‘Bye-Bye Bolam : AMedical Litigation Revolution?’ (2000) 8 Med. L. Rev. 85. See also E. Jackson, Medical Law: Text, Cases and Materials (OxfordUniversity Press, 2006) at 278.

7.P.D.G. Skegg, ‘English Medical Law and ‘Informed Consent’: an Antipodean Assessment and Alternative’ (1999) 7 Med. L. Rev. 135. Seealso I. Kennedy and A. Grubb, Medical Law, 3rd edn (Butterworths, 2000), who argue that the prudent patient test's failure to have‘endeared itself to the English courts’ was a result of the latter's ‘obvious deference to the medical profession’ (at 695) and D. Chalmersand R. Schwartz, ‘Rogers v. Whitaker and Informed Consent in Australia: A Fair Dinkum Duty of Disclosure’ (1993) 1 Med. L. Rev. 139,who describe the two approaches as the ‘doctor-oriented’ British rule and the ‘patient-oriented’ Australian alternative.

8.Op. cit. n. 1.

9.Ibid., at 265. Emphasis added.

10.Ibid.

11.See G. Robertson, ‘Informed Consent to Medical Treatment’ (1981) 97 Law Quarterly Review 102; T.K. Feng, ‘Failure of Medical Advice:Trespass or Negligence’ (1987) 7 Legal Studies 149; G. Seabourne, ‘The Role of the Tort of Battery in Medical Law’ (1995) 24

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Anglo-American Law Review 265; and J. Harrington, ‘Privileging the Medical Norm: Liberalism, Self-Determination and Refusal ofTreatment’ (1996) 16 Legal Studies 348.

12.Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.

13.See, for example, Brazier and Miola, op. cit. n. 6; Lord Woolf, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9Med. L. Rev. 1; H. Teff, ‘The Standard of Care in Medical Negligence - Moving on from Bolam’ (1998) 18 Oxford Journal of Legal Studies473; K. Norrie, ‘Common Practice and the Standard of Care in Medical Negligence’ (1985) 97 Juridical Review 145 and M. Jones, ‘TheBolam Test and the Responsible Expert’ (1999) 7 Tort Law Review 226.

14.Bolam, op. cit. n. 12, at 586. Emphasis added.

15.See, in particular, Whitehouse v. Jordan [1981] 1 All E.R. 267, H.L. and Maynard v. West Midlands Regional Health Authority [1985] 1 AllE.R. 635 H.L.

16.Maynard, op. Cit. n. 15, at 639.

17.Brazier and Miola, op. cit. n.6 at 88. See also, for example, J. Montgomery, Health Care Law, 2nd edn (Oxford University Press 2003),who notes that the law relating to medical negligence ‘seems to be rather more favourable to the doctors’ than the way in which the courtstreat other professions (at 170).

18.Sidaway, op. cit. n. 5.

19.Ibid., at 645.

20.Kennedy describes this situation as ‘less than ideal’ (I. Kennedy, ‘Consent: The Capable Person’ in C. Dyer (ed.), Doctors, Patients andthe Law (Blackwell 1992) at 65); Montgomery notes that ‘the outcome of the case was not matched by agreement on the legal tests to beapplied’ (J. Montgomery, Health Care Law, 2nd edn (Oxford University Press 2002) at 243; McHale and Fox state that the diversity of thespeeches means that ‘to provide a coherent statement of the law is … difficult’ (J. McHale and M. Fox, Health Care Law: Text andMaterials, 2nd edn (Sweet and Maxwell 2006) at 372); and Jackson refers to the case as ‘by no means clear’ (Jackson, op. cit. n. 6, at269).

21.Kennedy called Lord Diplock's approach ‘conservative’, Lord Bridge and Templeman's ‘the middle way’, and Lord Scarman's judgment a‘radical shift’ in the law (I. Kennedy, ‘Consent: The Capable Person’, op. cit. n. 20, at 65.

22.Ibid.

23.Ibid. , at 658.

24.Ibid. , at 649.

25.Ibid.

26.Ibid.

27.Ibid.

28.Canterbury v. Spence (1972) 464 F 2d 772.

29.Ibid., at 787, in Sidaway, op. cit. n. 5, at 653. Emphasis added by Lord Scarman in Sidaway.

30.Ibid. , at 660.

31.Ibid. , at 662.

32.Ibid. , at 662-663.

33.Ibid. , at 663.

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34.Ibid. , at 665.

35.See A. Grubb, ‘Commentary’ (1999) 7 Med. L. Rev. 58, at 62; Kennedy and Grubb, op. cit. n. 7 at 691; D. Meyers, ‘Chester v. Afshar :Sayonara, Sub Silentio, Sidaway ?’ in S.A.M. McLean (ed.), First Do No Harm: Law, Ethics and Healthcare (Ashgate, 2006) at 259.

36.Blyth v. Bloomsbury Health Authority [1993] 4 Med. L. Rep. 151. Although reported in 1993, the case was actually decided in February1987.

37.Ibid. , at 160. Per Neill L.J. See also Kerr L.J. at 157.

38.Gold v. Haringey Health Authority [1988] Q.B. 481,491.

39.Ibid.

40.I. Kerridge and K. Mitchell, ‘Missing the Point: Rogers v. Whitaker and the Ethical Ideal of Informed and Shared Decision-Making’ (1994) 1Journal of Law and Medicine 239 at 239. See also N. Olbourne, ‘The Influence of Rogers v. Whitaker on the Practice of Cosmetic PlasticSurgery’ (1998) 5 Journal of Law and Medicine 334 at 335-341, who states that the evolution from Bolam to Rogers in Australia wasinfluenced by a variety of factors, while arguing that that the latter imposes unreasonably high standards on physicians. From a differentperspective, Skene argued that the English courts had taken Bolam ‘ too far’ (L. Skene, Law and Medical Practice: Rights, Duties, Claimsand Defences (Butterworths 1998)). For an overview, see J. Devereux, Medical Law: Text, Cases and Materials (Cavendish 1997) at 134(who cites F v. R (1983) 33 S.A.S.R. 189 and Battersby v. Trottman (1985) 37 S.A.S.R. 524 as signifying a general dissatisfaction withBolam); D.I. Cassidy, ‘Malpractice - Medical Negligence in Australia’ (1992) 66 Australian Law Journal 67; J. Devereux, AustralianMedical Law, 2nd edn (Cavendish 2002); and M. Wallace, Health Care and the Law (Lawbook Co., 2001).

41.F v. R, op. cit. n. 40; Rogers v. Whitaker (1992) 175 C.L.R. 479.

42.Ibid. , at 191.

43.Ibid.

44.Ibid.

45.Ibid.

46.Ibid. , at 192.

47.Ibid.

48.Ibid.

49.Ibid.

50.Ibid. , at 192-193.

51.Ibid. , at 192.

52.Ibid. Interestingly, this facet of the doctor's duty is defined as a clinical judgment (and thus governed by Bolam ), as is the provision ofunsought information about risks, although the answering of questions does not appear to leave the doctor with a ‘clinical’ or any othersort of judgment to make--it is legally required that the question be answered fully.

53.Ibid. , at 193.

54.Ibid.

55.Ibid. , at 191.

56.Ibid. , at 192.

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57.Ibid at 193. In support, he provided a quote from Reibl v. Hughes [1980] 2 S.C.R. 280, which states that to ‘allow expert evidence todetermine what risks are material … is to hand over to the medical profession the entire scope of the duty of disclosure’, and that this wasunacceptable because the issue was ‘the patient's right to know’ (ibid. , at 193-194).

58.Ibid. , at 194. Emphasis added.

59.Ibid. , at 201. He further held that if it were to do so the court would ‘abdicate its duty to decide … whether in law a duty existed and hadnot been discharged’ (ibid ).

60.Ibid. , at 202-205. See Anderson v. Chasney [1949] 4 D.L.R. 71; Goode v. Nash (1979) 21 S.A.S.R. 419; Giurelli v. Girgis (1980) 24S.A.S.R. 264; Albrighton v. Royal Prince Alfred Hospital [1979] 2 N.S.W. L.R. 165 (all Australia); Reibl v. Hughes (op. cit. n. 57) (Canada);Smith v. Auckland Hospital Board [1965] N.Z.L.R. 191 (New Zealand); Mahon v. Osbourne [1939] 2 K.B. 14; Hucks v. Cole, The Times, 2July 1954; Wells v. Surrey Area Health Authority, Unreported, Queen's Bench Division, 28 July 1978; Sankey v. Kensington and Chelseaand Westminster Area Health Authority, Unreported, Queen's Bench Division, 2 April 1982; and, most surprisingly (albeit absolutelycorrectly), Bolam itself (op. cit. n. 13) and the infamous Hatcher v. Black, The Times, 2 July 1954 (England).

61.Rogers, op. cit. n. 52, at 480. Emphasis added.

62.For example, the submission also notes that Bolam ‘does not abdicate … determination of the standard of care’ to the medical profession,and that it is ‘ultimately for the court to decide’ if medical conduct is reasonable. Furthermore, the court can find negligence in mattersinvolving expertise if ‘the practice is obviously wrong’ (ibid ). How these are consistent with the main submission quoted in the main text isnot explained.

63.Ibid.

64.Ibid. , at 481.

65.Ibid.

66.Ibid at 485.

67.Ibid. , at 486-487. Emphasis added.

68.Ibid. , at 487.

69.The court cited Albrighton v. Royal Prince Alfred Hospital (op. cit., n. 71) and E. v. Australian Red Cross (1991) 27 F.C.R. 310 in supportof this proposition.

70.Rogers, op. cit. n. 41 at 487, citing F v. R and Battersby v. Trottman (both op. cit. n. 40) as examples. It also quoted with approval KingC.J. in F stating that the court must give effect to ‘the paramount consideration that a person is entitled to make his own decisions abouthis life’ (ibid ).

71.Ibid. , at 488.

72.Ibid. , at 489.

73.Ibid.

74.Ibid.

75.Ibid. , at 490. The court added that this duty would be subject to the doctor's therapeutic privilege.

76.Rosenberg v. Percival (2001) 205 C.L.R. 434 at 435.

77.Ibid. Arndt v. Smith [1997] 2 S.C.R. 539.

78.Rogers at 491.

79.

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Arndt v. Smith, op. cit. n. 77, para 10.

80.Ibid.

81.Ibid.

82.Ibid.

83.Manning, op. cit. n. 4, at 181. The Code is set out in the Health and Disability Commissioner (Code of Health and Disability ServicesConsumers' Rights) Regulations 1996, Statutory Regulations 1996, Number 78.

84.Ibid., at 190.

85.See Ibid., and Skegg, op. cit. n. 7.

86.The Code in its entirety can be found on the Health and Disability Commissioner's website at http://www.hdc.org.nz. Accessed on 22August 2007.

87.Ibid. A ‘consumer’ can mean a patient or a person who has the right to consent on behalf of that person. See Clause 4 of the Code and,more generally, R. Paterson and P.D.G. Skegg, ‘The Code of Patients’ Rights' in P.D.G. Skegg and R. Paterson (eds), Medical Law inNew Zealand (Thomson 2006) at 29.

88.Ibid.

89.Ibid.

90.See P.D.G. Skegg, ‘The Duty to Inform and Legally Effective Consent’ in P.D.G. Skegg and R. Paterson (eds), Medical Law In NewZealand (Thomson 2006) at 212.

91.Manning, op. cit. n. 4 at 193, citing a paper given by Skegg.

92.Ibid.

93.Ibid. See Case 98HDC199009 Obstetrician and Gynaecologist (19.1.01) and Case 98HDC13693 Neurosurgeon/Hospital and HealthService (6.12.00), Manning at 193 n. 61.

94.Manning, op. cit. n. 4 at 215.

95.Skegg, op. cit. n. 7 at 156.

96.Rosenberg, op. cit. n. 76.

97.I. Freckleton, ‘Rogers v. Whitaker Reconsidered’ (2001) 9 Journal of Law and Medicine 5, at 10. Indeed, previous cases in lower courtshad supported Rogers, whose authority was never in doubt. See, for example, Breen v. Williams (1996) 186 C.L.R. 71, where it was heldthat Rogers ' took away from the medical profession … the right to determine, in proceedings for negligence … what mounts toacceptable medical standards' (at 114).

98.Rosenberg, op. cit. n. 76, at 478.

99.McAllister v. Lewisham and North Southwark HA [1994] 5 Med. L. Rep.343; Smith v. Tunbridge Wells HA [1994] 5 Med. L. Rep. 334;Pearce v. United Bristol Healthcare N.H.S. Trust [1999] P.I.Q.R 53.

100.McAllister at 351

101.Smith at 336-337.

102.Indeed, having quoted, Lord Templeman stating that a patient deprived of adequate information may make an ‘unbalanced judgment’,Morland J. made a point of emphasising the point: ‘I interpose to say in this case that that sentence is of importance’ (ibid at 337).

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103.Ibid. , at 335.

104.In the comment at the end of the report, Margaret Puxon QC states that despite rejecting Rogers, the court ‘reached the same result bysubstituting the court's view of what was reasonable for the objective test’ (ibid at 342).

105.Pearce at 56.

106.Ibid. , at 59.

107.See A. Maclean, ‘Giving the Reasonable Patient a Voice: Information Disclosure and the Relevance of Empirical Evidence’ (2005) 7Medical Law International 1. See, in particular, pages 7-10.

108.Pearce at 59.

109.Wyatt v. Curtis [2003] E.W.C.A. Civ 1779; Fitzpatrick v. White [2007] I.E.S.C. 51.

110.Ibid.

111.Olbourne, op. cit. n. 40 at 343. See also R. Milstein, ‘High Court Rules on Informed Consent’ (1992) 1(4) Australian Health Law Bulletin37.

112.Olbourne, op. cit. n. 40, at 346. He cites a ‘personal communication’ from the Medical Defence Union Secretariat as authority for this.

113.Ibid., at 347.

114.B. Hickman, ‘Defensive Doctors Put Fear to Test’, The Australian, 3 January 1998, page 6 quoted in D. Mendelson, ‘The Breach of theMedical Duty to Warn and Causation: Chappel v. Hart and the Necessity to Reconsider some Aspects of Rogers v. Whitaker ’ (1998) 5Journal of Law and Medicine 312 at 317.

115.Ibid., at 318.

116.Rosenberg v. Percival, op. cit. n. 76. The grounds are summarised by Freckelton, op. cit. n. 97 at 5-6).

117.See also P.M. Schuck, ‘Rethinking Informed Consent’ (1994) 103 Yale Law Journal 899.

118.Freckleton, op. cit. n. 97 at 5. See also Kerridge and Mitchell, op. cit. n. 40 and, in the context of Canadian law, a similar point is identifiedin Robertson, op. cit. n. 11.

119.Freckelton, op. cit. n. 97 at 6. See also Schuck, op. cit. n. 117.

120.See S. Girgis, C. Thomson and J. Ward, “‘The Courts Expect the Impossible”: Medico-Legal Issues as Perceived by New South WalesMedical Practitioners' (2000) 7 Journal of Law and Medicine 273.

121.Rosenberg v. Percival, op. cit. n. 76 at 101. Donoghue v. Stephenson [1932] A.C. 562 is a landmark case where the House establishedthe ‘neighbour principle’ in the law of tort. The plaintiff had allegedly found a dead snail in a bottle of ginger beer.

122.Rosenberg v. Pervival, op. cit. n. 76, at 439.

123.F v. R, op. cit. n. 40 at 194.

124.Ibid. , at 201.

125.Ibid., per Bollen J.

126.Rogers, op. cit., n. 41 at 481.

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127.Ibid. , at 487. Emphasis added.

128.Reibl v. Hughes, op. cit. n. 57; quoted in Rogers at 488.

129.Ibid. Emphasis added.

130.Ibid. Emphasis added.

131.Ibid. Emphasis added. He added that ‘[w]hat is required is reasonable care on the part of the doctor in exercising a judgment as to thereal wishes of the patient … If a reasonable exercise of that judgment is against volunteering information he will not be negligent’ (at 193.Emphasis added).

132.Ibid., at 193.

133.Ibid.

134.Ibid.

135.Sidaway, op. cit. n. 5 at 663.

136.Rosenberg, op. cit. n. 76, at 459.

137.Rogers, op. cit. n. 41, at 491.

138.Sidaway, op. cit. n. 5, at 661.

139.Ibid. , at 664.

140.Ibid. , at 659.

141.GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008).

142.Ibid.

143.Ibid. , at paras 2(a) and (b).

144.Ibid. , at para 7.

145.Ibid. , at para 10.

146.For further argument and explanation of this point, see J. Miola, Medical Ethics and Medical Law - A Symbiotic Relationship (Hart 2007).

147.See J. Tingle and C. Foster (eds), Clinical Guidelines: Law, Policy and Practice (Cavendish 2002) and A. Samanta, M. Mello, C. Foster, J.Tingle and J. Samanta, ‘The Role of Clinical Guidelines in Medical Negligence Litigation: A Shift from the Bolam Standard’ (2006) 14Med. L. Rev. 321.

148.Ibid. , at 322.

149.A. Maclean, ‘Autonomy Consent and Persuasion’ (2006) 13 European Journal of Health Law 321, 325.

150.Al Hamwi v. Johnson and Another [2005] EWHC 206.

151.See J. Miola, ‘Autonomy Rued OK?’ (2006) 14 Med. L. Rev. 108.

152.

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Al Hamwi, op. cit. n. 150, para 69.

153.Maclean, op. cit. n. 149, 326.

© 2012 Oxford University Press

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