Why Britain Can't Afford Informed Consent

Author(s): Robert Schwartz and Andrew Grubb

Source: The Hastings Center Report , Aug., 1985, Vol. 15, No. 4 (Aug., 1985), pp. 19-25
Published by: The Hastings Center

Stable URL: https://www.jstor.org/stable/3561380

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 Hasting Center Report, August 1985
Why Britain Can't
Afford Informed
Consent
by Robert Schwartz
and Andrew Grubb
II I~~~~~~~~~~~~~~
In the case of Mrs. Amy Sidaway, the House of
Lords has rejected the "American" legal doctrine
of informed consent, which is based on patients'
rights, in favor of a standard based on the obliga-
tions of the reasonable physician. The British Na-
tional Health Service, with centralized planning,
prospective funding, and limited resources, is un-
likely to provide a safe harbor for a doctrine
based on individual choice in health care.
I I I I
Despite partial paralysis, Mrs. Amy Sidaway at-
tended the first day of the House of Lords' three-
day hearing in her malpractice case, Sidaway vs. The
Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital, last December.? An unusually per-
severing person, she is a comparative rarity as a mal-
practice plaintiff in England: Fewer than 1,000
medical malpractice actions were filed in 1981, the
last year for which figures are available? In Febru-
ary 1985 the House of Lords, as expected, affirmed
lower court decisions denying her claim.
More than ten years after active legal discussion
of informed consent began in the U.S., the first case
based firmly in that doctrine came to England's
Robert Schwartz is professor of law, University of New
Mexico. Andrew Grubb is assistant lecturer in law,
Cambridge University, England, and Fellow ofFitzwilliam
College, Cambridge.
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highest court only to reject the importation of the
"American" doctrine.
Mrs. Sidaway had been suffering back pains since
she injured her elbow in 1958. In 1960 a respecte
neurosurgeon, Mr. Falconer, performed spinal su
gery that, for a time, eased her pain. Mr. Falcone
examined Mrs. Sidaway each year for the next de
cade, and in late 1973 he wrote to her, inquirin
about her condition. As one appellate judge later
noted, "Bearing in mind that the plaintiff was n
a private patient, it is a great tribute to Mr. Falconer
compassion and interest that he wrote as he did
When Mrs. Sidaway responded that much of th
pain had returned, Mr. Falconer recommende
readmission to the hospital for further testing. She
remained on the National Health Service waiting
list for several months, and her readmission was fur
ther delayed by a hospital strike In late 1974 the tes
were performed, and Mr. Falconer determined that
she needed a laminectomy-an operation to re
move a thin plate from a vertebra. Mrs. Sidawa
described Mr. Falconer as a man of "very, very few
words" and the trial court judge found him to b
"an obsessively meticulous surgeon....and a re
served, slightly autocratic man of'the old school'.
The judge determined that before seeking her
consent to the laminectomy Mr. Falconer had in
formed Mrs. Sidaway of the possibility of disturb
ing a nerve root, but not the 1 to 2 percent chance
of spinal cord damage, the consequences of whic
could range from the mild to the catastrophic. Mrs
Sidaway agreed to the operation. During the cours
of the surgery, she was seriously injured and remain
partially paralyzed. As a result, she was forced to giv
up her employment as a file clerk and her leisur
activities, which included sewing and gardening
It is virtually impossible for middle-class plain
tiffs to afford malpractice actions in England. Th
vast majority are brought by clients like Mrs. Sida-
way who qualify on financial grounds for legal a
sistance. Some time after the laminectomy Mrs
Sidaway found a solicitor willing to commence a
malpractice action against the estate of Mr. Falconer
who had since died, and the hospital where the sur-
gery was performed.
She did not question the quality of Mr. Falconer's
surgery, which, everyone agreed, had not been negli
gent. Her entire claim was based upon his failur
to inform her of the risks of injury inherent in th
surgery. The trial courtjudge concluded, first, that
the risk that Mr. Falconer had failed to communi-
cate was a "material" one, and, second, that it was
the practice of some responsible physicians not to
inform their laminectomy patients of this materi-
al risk before seeking their consent. Neither of these
findings has ever been challenged.
 Hasting Center Report, August 1985

To decide the case, the judge had to determine the legal question so starkly that Mrs. Sidaway
which legal standard was to be applied to evaluate challenged his view of the law in the Court of
the information that a physician must provide to a Appeal.
patient before carrying out a medical procedure.
The plaintiff argued that the physician has an ob- The Court of Appeal
ligation to obtain informed consent independent
of the duty to treat and care for his patient in a The Court of Appeal unanimously affirmed the
reasonable manner. Thus, the plaintiff urged the judge's decision. The three-judge panel left no
court to adopt what became known, rather pejora- doubt that theirjudgments were based as much on
the difference between British and American medi-
tively, as the "American" rule: a physician must in-
form his patients of all the risks and benefits of the cine as they were on the difference between English
and American law. SirJohn Donaldson, the Master
proposed treatment, and such information about
the alternatives as a reasonable patient would want of the Rolls (President of the Civil Division of the
to know in order to make an informed and ration- Court of Appeal), admitted that the courts would
not
al decision. Essentially, this represents the standard
adopted in 1972 in Canterbury v. Spence,3 the leading stand idly by if the profession, by an excess of patern
American case, which now forms the basis of the law ism, denies its patients a real choice. In a word, the
in many states. will not permit the medical profession to play God
The defendants contended that the standard or-
But, in limiting physicians to their priestly minis
dinarily applied in medical malpractice cases, andtrations, he leaves no doubt about where good sen
in all negligence cases, ought to be applied in thiswould place decision-making authority:
situation. The defendant physician, they argued,
should be liable only if no reasonablephysician wouldA doctor's duty of care, as the profession would readily
do what the defendant did, namely, seek consent to concede, involves his evaluating risks and weighing
the laminectomy without informing the patient of vantages and disadvantages before recommending a par
all material risks. This "reasonable doctor" or "or- ticular type of treatment. But, having decided what
recommend, there must be a natural, and up to a point
dinary negligence" standard is still applied in some
praiseworthy desire that the advice shall be accepted an
Americanjurisdictions.5 Whether the "American"
a strong temptation not to say anything which might le
rule is, in fact, the majority rule in the United States
to its rejection and so frustrate the doctor's prime obje
depends upon how ambiguous decisions are count- which is to maintain and improve the patient's heal
ed; each rule provides the law in several states on
this side of the Atlantic. LordJustice Dunn, in concluding that "[t]he do
trine of informed consent form[ed] no part of En
The "American" rule is patient oriented: it looks
to the plaintiffs need or desire to know. The "ordi- lish law,' explained that
nary negligence" rule is physician oriented; it looks [i]t is doubtful whether [informed consent] would be a
to the conduct of the reasonable physician. Under significant benefit to patients, most of whom prefer t
either rule, the patient would be able to recover onlyput themselves unreservedly in the hands of their d
tors. This is not in my view "paternalism;' to use an evo
if the failure to inform was the cause of the patient's
apparent consent to the procedure. In this case, the tive word used in argument. It is simply an acceptan
judge found that: of the doctor/patient relationship as it has developed i
this country.

The Court of Appeal reviewed Canterbury v. Spence

...if [Mrs. Sidaway] had had the nature of the operation
fully explained to her, and been told of the small but ap-with a scrutiny unmatched by any of the American
preciable risk of spinal cord damage, she would not have decisions that have applied it. The Canterbury court's
consented to undergo the operation when she did... almost imperceptible slide from a theory of battery
to one of fiduciary duty and then, finally, to one
The trial courtjudge was squarely faced with the al- based on negligence did not enhance the status of
ternative legal theories: the "American" rule would the United States Court of Appeals in its English
unquestionably lead to a judgment for Mrs. Sida- counterpart. Through very careful analysis of the
way; the ordinary negligence rule would unques- authorities cited in Canterbury, the English courts
tionably lead to a judgment for the defendants. have admitted what most American courts have
Finding that "there is a clear divergence between neglected to say-Canterbury represents a real depar-
the English decisions and the transatlantic ture from the previous law. Even if its result was
cases,...[and] I am bound by the former" the judge based upon sound policy, it did not flow from well-
applied the ordinary negligence rule and decided established law. It was, as Lord Scarman put it in ar-
for the defendants. Thejudge's findings of fact put gument in the House of Lords, a "bold step."
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 Hasting Center Report, August 1985

House of Lords
have, is as much an exercise ofprofessional skill and judgment
The Court of Appeal permitted Mrs. Sidawayastoany other part of the doctor's comprehensive duty of care to
the individual patient, and expert medical evidence on this mat-
appeal her landmark case to the House of Lords.
ter should be treated the same way... [emphasis added]
The oral argument left little doubt that the House
of Lords would not give a secure harbor to a trans-
atlantic crossing of the "American" doctrine of in-In England the "reasonable doctor" test has often
formed consent. During the oral arguments the Lawmade it very difficult for a plaintiff to establish
Lords frequently pointed out that the status negligence
and against a doctor in a medical malprac-
tice action. Compliance with a procedure, treat-
protection of the medical profession were relevant
considerations. They contrasted the relationship ment,
of or diagnostic process accepted by a
competent body of medical opinion will not be
the two professions in England with the travail visit-
ed upon American physicians by the judicial scru- negligent even if other members of the profession
tiny of medical decisions through the doctrine would
of not have followed the defendant's action.
informed consent, but made no attempt to evalu- Does this mean that expert medical evidence o
professional opinion will conclusively determine
ate the effect the doctrine has had upon American
a doctor's legal duty? Lord Diplock considered tha
medicine. It was simply assumed that the effect had
been adverse. It was no surprise, therefore, that such
the evidence would be conclusive. However Lord
House of Lords dismissed the appea.6 Bridge (with whom Lords Keith and Templeman
agreed) did not regard the "reasonable doctor" tes
All but one of the Law Lords rejected the Canter-
as necessarily "hand[ing] over to the medical profes-
bury test, and four of the five panel members deliv-
ered separate opinions. Lord Bridge recognized sionthe the entire question of the scope of the duty of
disclosure..."8
"logical force of the Canterbury doctrine, proceed-
Lord Bridge gave two illustrations of the court's
ing from the premise that the patient's right to make
his own decision must at all cost be safeguarded role. First, the court would resolve any conflicting
against the kind of medical paternalism whichexpert as- evidence of whether a responsible body of
sumes that 'doctor knows best'...," but he regardedmedical opinion did approve of nondisclosure. But
any testimony by any "responsible" physician that
the Canterbury test as "quite impractical" In his view
he would not disclose a particular risk would appear
it gave too little scope for the doctor's clinicaljudg-
ment; it deprived the court of the benefit of expert to meet the doctor's evidentiary burden. Thus, it is
evidence when determining which risks should difficult
be to imagine the conflict of expert evidence
that Lord Bridge discussed ever arising unless the
disclosed; and it was "so imprecise as to be almost
meaningless." Although Lord Bridge superficially defendant was alleged to be practicing "quack"
medicine.
rejected "medical paternalism;' he really embraced
it by failing to follow the Canterbury decision. AnySecond, even if such a body of opinion did exist,
ambiguity in Lord Bridge's approach was dispelled the court could nevertheless regard nondisclosure
when he said: in accordance with it negligent where "an operation
involved a substantial risk of grave adverse conse-
quences,
...that a decision [concerning] what degree of disclosure as, for example, the ten percent risk of a
stroke from the operation which was the subject of
of risks is best calculated to assist a particular patient to
make a rational choice as to whether or not to undergo
the Canadian case ofReibl v. Hughes.." But even this
a particular treatment must primarily be a matter ofclini-
would not be so if "cogent clinical reasons" exist-
cal judgment. [emphasis added] ed for nondisclosure. What legal standards the
Most of the court considered the doctor-oriented
courts might employ to determine whether a
responsible body of medical opinion was improper,
"reasonable doctor" test, with its reliance on expert
or whether any "clinical reasons" were sufficiently
medical evidence of professional practice, a more "cogent,' was left unexplained. Rarely will a court
appropriate yardstick. Lord Diplock summed up be in a position to "second-guess" the medical
the majority's position: profession and so the exercise of the residuary
power to override professional opinion will be ex-
The only effect that mention of risks can have on the pa-
ceptional. Even on the exceptional facts of this case,
tient's mind, if it has any at all, can be in the direction
Lord Bridge saw no reason to do so.
of deterring the patient from undergoing the treatment
which in the expert opinion of the doctor it is in the pa- The Majority's decision to reject the Canterbury
tient's interest to undergo. To decide what risks the ex- approach must be seen in the context of the differ-
istence of which a patient should be voluntarily warned ing processes ofjudicial reasoning in America and
and the terms in which such warning, if any, should be England. In America, with a written constitution
given, having regard to the effect that the warning may and bill of rights, legal remedies can be derived

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 Hasting Center Report, August 1985

from rights (here, the rights of patients). In England, Law Lords ultimately felt obliged to leave the deci-
with no written set of broad and fundamental prin- sion in the hands of the physician.
ciples and a tradition of stricter reliance on prece- The House of Lords' decision is the final judicial
dent, legal remedies can be derived only from determination of the issue. Parliament is extreme-
previously defined duties (here, duties of physicians). ly unlikely to intervene to change the law. Although
Necessarily, American law can be rights- (and, thus, their Lordships unanimously dismissed the appeal,
patient-) oriented while English law has to remain their reasoning lacks any such unanimity.
duty- (and, thus, physician-) oriented.
Only Lord Scarman threw off the shackles of the The Social Climate
traditional English approach:
The Law Lords' approach grows out of a long tra-
The doctor's duty arises from his patient's rights. If one dition of highly paternalistic medicine, an attitude
considers the scope of the doctor's duty by beginning vigorously attacked by Professor Ian Kennedy in Th
with the right of the patient to make his own decision Unmasking of Medicine (1983). The tradition is sup-
whether he will or will not undergo the treatment pro- ported by the social class differences between most
posed, the right to be informed of significant risks and
patients and their physicians and the greater sig
the doctor's corresponding duty are easy to understand:
nificance of these differences in the United King
for the proper implementation of the right requires that
dom. As the proceedings in Sidaway indicate, th
the doctor be under a duty to inform his patient of the
material risks inherent in the treatment. legal profession defers to its medical counterpar
as a part of the tacit agreement to respect the trad
The "right to self-determination" could be said tional distribution of social power. English lawyer
are not perceived by English doctors as adversarie
to require disclosure of all risks which a particular
patient would want to know but, as Lord Scarman because they are social classmates, cohorts, an
remarked, while this might be the doctor's ethical friends. Unlike American professional education
duty, it could not be his legal duty because the lawEnglish medical and legal curricula are largely un
did not operate in Utopia and this subjective ap- dergraduate programs. Unlike the differences be
tween Socratic law classes and didactic medical
proach would be "frustrated by the subjectivity of
its aim and purpose." Instead Lord Scarman ap- classes, the forms of education offered to Eng
medical and law students are broadly similar.0 Th
proved the "prudent patient" test of Canterbury.
Even a patient-oriented test requires exceptions.it was easy for the Law Lords, who appeared to h
In America, waiver, incompetence, and "therapeu- no trouble understanding the medical proced
tic privilege" have been accepted? In Sidaway Lord the Sidaway case, to discuss in argument how
in
Scarman recognized the last exception: ficult it would be for any patient to underst
those same procedures.
In addition, there may be less need for malp
A doctor may avoid liability...if he can show that he
reasonably believed that communication to the pa- litigation and, particularly, its most symb
tice
tient...would be detrimental to the health (including, ofmanifestation-informed consent litigation-
course, the mental health) of the patient. society where there is a well-developed welfare s
tem. Mrs. Sidaway, although uncompensated for
The "therapeutic privilege" exception, like that pain
of and suffering, is at least partially protec
from the loss of income that resulted from her sur-
waiver, furthers the autonomy or the "right to self-
gery. The National Health Service will provide all
determination" of the patient because it enhances
the subsequent medical care she requires without
his ability to choose by denying him the informa-
charge.
tion that would impair his ability to make an in-
formed choice.
In the end, even Lord Scarman determined that De Facto Rationing and Informed Consent
Mrs. Sidaway had not met her burden of proof by
showing that the small risk of serious injury was the Even in the absence of these factors, informed
kind of risk of which a "prudent patient" would consent probably could not become a recognized
wish to be apprised. It is hard to imagine what ad- part of medical practice in England. Ultimately, the
ditional evidence could have been adduced to allow existence of a national health system, prospective-
Lord Scarman to determine whether the risk was ly funded by a central planning authority, and with
limited and defined resources, makes the accep-
"material" The important consequence of the Sida-
tance of such a doctrine an impossibility. The 1984
way case may be found not in the confusing and di-
verse reasons for the result but in the realization that edition of the British Medical Association's "Hand-
even on the relatively clear facts of this case all five book Of Medical Ethics" states:

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 Hasting Center Report, August 1985

Within the National Health Service resources are finite, forms of cancer screening, or more active interven-
and this may restrict the freedom of the doctor to advise tion upon their seriously ill newborns, they will get
his patients, who will usually be unaware of this limita- it. In those four areas the availability of health care
tion. This situation infringes the ordinary relationship in the United States dwarfs the reduced level of serv-
between patient and doctor....(paragraph 10.44)
ices available in Britain. If patients are willing to
spend more on health care (and health insurance)
Because the system cannot tolerate the financial ef-
and less on cars and skiing, a greater portion of the
fects of all reasonably possible patient decisions, it nation's resources will be directed toward health
cannot tolerate the doctrine of informed consent.
The handbook continues: "Patients will seek ad- care. As Charles Fried argued six years ago, "The o
sure way to determine what the proper level o
vice...where the doctor believes treatment to be
health care consumption is" must be "consume
desirable; however, because of limited resources,
choice.1'
such treatment may not be available...within the
Thus, at least in those areas generally covered by
NHS" By contrast the American health care system
insurance schemes (and those same areas genera
may be structured in such a way that it can more
ly end up covered by government program
readily embrace the doctrine of informed consent.
designed to aid those without insurance), the ec
While the American health care system is hardly
nomics of the health care system allows room f
a paradigm of the open market, it does have many
consumer choice. This consumer choice in the
of its attributes. Although the widespread existence
health care market, and the subsequent "cons
of health insurance may cause some patients to ig-
sovereignty," stem from precisely the same pri
nore the high cost of medical care, that care is not
ples that give rise to the doctrine of informed
always overused for that reason. Patients are unlikely
sent, which, after all, only assures that cons
to choose kidney dialysis, for example, or heart by-
choices will be appropriately made. Consu
pass surgery, just because they enjoy being con-
choice and the doctrine of informed consent arise
sumers. Even if owning more cars is always better
out of notions of self-determination and autonomy.
than owning fewer (you can sell off the ones you do
Even the President's Commission, which recom-
not use), more time on a respirator is not always bet-
mended shared physician/patient decision making,
ter than less. Further, recent use of the antitrust laws
recognized that
to increase competition between health care insti-
tutions, and proposals to encourage large deducti-
in the context of health care, self-determination over-
ble and copayment elements within medical
rides practitioner-determination even if providers were
insurance schemes, indicate that something closer
able to demonstrate that they could (generally and in a
to a market for health care may develop. specific
The instance) accurately assess the treatment an in-
decades-old discussion of what American nation-
formed patient would choose.2
al health insurance would look like has given way
In reaching this determination, the Commission de-
to discussion of how to bring the economics of the
marketplace to health care. pended on Gerald Dworkin's recognition that of all
Within the market for medical services, as with-
of the foundations advanced as support for the doc-
trine
in any market, the consumer makes the choice of of informed consent-privacy, self-
allocating resources. Even when the doctor determination, loyalty, autonomy, freedom, integri-
ty, dignity, and medical benefits-the core notion
prescribes and the insurance company pays, the pa-
tient is the consumer. As the model requires, theispa-
one of autonomy.'3
tient will decide the nature of the medical care to Simply stated, the economic principle of "con-
be provided. If a patient arguably suited for kidney sumer sovereignty" and the underlying notions of
dialysis wants kidney dialysis, and if he can pay for autonomy and self-determination are recognized in
medical law through the principle of informed con-
it, the patient is likely to get kidney dialysis. Because,
in fact, patients can pay for kidney dialysis in the sent, which allows patients to choose which treat-
United States (albeit only with a good deal of ment to undergo and which to forego. There can be
government intervention in the market), those pa-no "consumer sovereignty" except within a system
tients who might be able to benefit from dialysis will that recognizes the doctrine of informed consent,
be told of that possible treatment, and will be able there is no informed consent where the patient-
and
to choose to undergo it. consumer cannot have a choice of health care
The patient's choice of treatment will determine options.
not only the allocation of health care resources, but The economics of the British National Health
the portion of all resources that will be allocated Service could not tolerate providing patients with
to health care. For example, if more patients want real authority to choose health care. Compared to
dialysis, or heart bypass surgery, or more expensive United States, Britain spends about half the per-
the

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 Hasting Center Report, August 1985

centage of its already lower gross national product While each physician has an obligation to his p
tients, he also bears some obligation to the healt
on health care. Obviously, that system could not af-
ford the medical care choices that are being made care of the nation as a whole. Specialists, who co
in the United States. trol the most expensive technologies, are likely
A decision to provide some particular medicalbe especially protective of their resources since the
procedure within the National Health Service does are in a position to predict who will be denied thos
not allocate more of society's resources to healthresources if a particular patient gets them. A ph
care; that allocation has already been made. A de-sician knows that for each patient who receives di-
alysis, somebody else will not. In his role as
cision to spend ?10,000 on one case necessarily
means that ?10,000 less will be spent to provide
physician, he is obliged to explain to his margin
health care to others. The question of whether ter-dialysis patient what the risks, benefits, and alter-
minally ill and comatose patients should be main- natives to dialysis would be. In his role as allocat
tained is not often discussed across the Atlantic; of health services, he is obliged to see to it that th
there simply are not the financial resources to per- marginal patient is not provided with dialysis. B
mit patients' families to decide the issue. Similarly, cause the alternative to such treatment is usuall
while the United States has ninety dialysis places per death, it is hard to imagine how a physician wh
million population, Britain has only thirty-three.14 must, as the system requires, play the second ro
This difference does not represent a population can possibly play the first adequately.
with dramatically different medical diagnoses; rath- The only way that physicians can allocate scarc
er, some patients who would need (and get) dialy- services is to decide that the patient is not a candi-
sis in the United States are not offered it in England. date for those services-in this case, dialysis-and
The National Health Service is required by law thus should not be offered the option. To accom
to provide all health care services necessary "to meet plish that, a physician must change some of the at
all reasonable requirements."15 Thus, it is politically tributes that, if there were sufficient services for a
and legally difficult for the Government to admit who might want them, would be considered pe
that resources are insufficient to meet the medical sonal values to be weighed by the patient, into med
needs of the country, although on rare occasions im- ical criteria to be evaluated by the doctor. F
plicit financial limitations have been explicitly
example, doctors consider certain "quality-of-lif
factors such as mental and physical disability, famil
recognized. In 1980, in R. v. Secretary of Statefor So-
supportiveness, and ability to communicate (in th
cial Services, ex p. Hincks16 the Court of Appeal heard
language of the doctor, of course) as medical fac
orthopedic patients claim that lack of hospital fa-
cilities in a particular center had caused them totors in determining whether dialysis is appropr
ate.2 Similarly, many patients are not offered
wait for treatment longer than was medically advis-
able. In dismissing their claim, the Court of Appealchoice of dialysis because they are diabetics or over
emphasized the limited resources available to the fifty-five years old.
Government. The trial judge put it thus: Because the unspoken defacto rationing is don
by physicians alone, they must define the issues as
It all turns on the question of financial resources. If thenarrow medical questions, not suitable for gener
al public discussion. As the President of the Brit
money is not there then the services cannot be met in
one particular place.7 ish Kidney Association explained following th
highly publicized recent "rescue" of a mentally and
physically ill "difficult" dialysis patient whose treat
While the law can recognize and validate the post-
ment was discontinued in January:
ponement of orthopedic treatment, the fatal con-
sequences of not providing dialysis have made it
impossible for the National Health Service to admit Decisions not to treat kidney patients are being take
that this life-sustaining treatment would ever be de-by doctors all the time. Usually the patient does not un
derstand that he could have been treated and goes aw
nied because of inadequate resources.8 Since for-
to die quietly.
mally articulated dejure rationing is impossible, the
health care system must allocate its limited
resources through some defacto rationing process.!9Of course, informed consent and patient auton
The decentralized nature of the National Health my are not always expensive principles that requir
Service, combined with the medical profession's a claim on scarce health care resources. In the Unit-
consistent demand that it be the sole arbiter of med-
ed States controversy has flared over terminally il
ical questions, have put the burden of allocating patients' rights to refuse such expensive treatment
as chemotherapy and dialysis. The recognition
resources upon individual practitioners and med-
ical specialists. patient autonomy will allow these patients to choos

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 Hasting Center Report, August 1985

to forego treatment, if they choose, with a conse- 21984 Annual Report, Action for Victims of Med
dents, London.
quent saving of money. In a closed, prospectively
funded system, these funds would be reallocated to 3 464 F 2d 772 (D.C. Cir. 1972)
other medical care. Nevertheless, while deference 4 The court also depended upon the leading Canad
Reibl v. Hughes 114 D.L.R. 3d 1 (1980), which adopt
to patients' wishes may save some funds, it results
the principles in Cantertury v. Spence. A chart out
in an unpredictable level of health care demands, standard of disclosure adopted in each United Sta
which makes health care planning very difficult. diction is included in Appendix L, the Law of Info
In many of the most controversial areas, such as sent, in President's Commission for the Study o
Problems in Medicine and Biomedical and Behavioral Re-
those touching upon supportive care for the termi-
search, Making Health Care Decisions (Volume III) 206-245
nally ill or seriously ill newborns, the British med-
(1982).
ical profession has already chosen the cheaper
See especially Bly v Rhoades 222 S.E. 2d (Va. 1976), which was
path-apparently as a matter of medicaljudgment. approved by Lord Bridge, who found the reasoning of the
In other areas, such as Mrs. Sidaway's back troubles, Supreme Court of Virginia "particularly cogent and convinc-
a decision against expensive therapy may only delay ing." [1985] 2 W.L.R., at 504.
the necessity for even more costly and longer term 6 [1985] 2 W.L.R. 480. For a detailed analysis of the case see:
health care. If health care decisions were, in fact, pa- Andrew Grubb, "A Survey of Medical Malpractice Law in En-
gland: Crisis? What Crisis?,'Journal of World Health Law and
tient decisions, there would be no way to achieve the
Policy, 1 (forthcoming 1985).
centralized financial planning that is one of the
7 Bolam v. Friern Hospital Management Committee [1957] 1
necessary and stabilizing characteristics of the Na- W.L.R. 582; Whitehouse v.Jordan [1982] 1 W.L.R. 246; Maynard
tional Health Service. v. West Midland Regional Health Authority [1984] 1 W.L.R. 634.
The value attached to patient participation in
8 Quoting CJ. Laskin in Reibl v. Hughes (1980) 114 D.L.R. (3d)
medical decision making within the National
1 at 13.
Health Service cannot be as great as the value9 at-
See Alan Meisel, "The Exceptions to the Informed Consent
tached to it when the patient is likely to pay for the
Doctrine: Striking A Balance Between Competing Values in
consequences of his decision. The National Health
Medical Decision-Making," Wisconsin Law Review, 2 (1979).
Service cannot afford the caprices of individual 10
pa-See generally, John R. Ellis, "The Undergraduate Training
tients who may choose medical care that leads to anin the U.K.," pp. 150-157; and Edgar A. Reed, "Postgraduate
Medical Education in the U.S.A.,' pp. 158-165, in The Influence
improper allocation of the community's health care of Litigation on Medical Practice (1977) ed. Clive Wood.
resources. The collective health of the nation can-
Quoted in Carol Levine, "Ethics and Health Cost Contain-
not be held hostage by a few who wish more expen-
ment," Hastings Center Report (February 1979), p. 12.
sive treatment. There cannot be consumer
12 Making Health Care Decisions (Volume I), p. 45.
sovereignty, and, thus, there cannot be as
13 much re- "Autonomy and Informed Consent,' in Mak-
Gerald Dworkin,
spect for patient autonomy and the doctrine of in-
ing Health Care Decisions (Volume III), p. 66.
formed consent, within a financially closed system.
14 "Decision To Stop Treating Kidney Patient Taken 'On Med-
ical Grounds',' The Times, January 9, 1985, p. 2.
Because allocation decisions, which are implicitly
15 National
patients' decisions in the United States, mustHealth be-Services Act 1977, section 3.
come doctors' decisions in the United Kingdom,
16 Unreported but set out in John Finch, Health Services Law
there cannot be the same legal or social(1981), pp. 37-39.
recogni-
tion of the primacy of patients' rights to17make
(1979) 123 Sol.Jo. 436.
rela-
18 "Why Doctors Send Kidney Patients to Die', Sunday Times,
tively free, unfettered, and informed choices about
January 13, 1985, p. 7. See also the leading article "Prolong-
alternative therapies. The increasing number of
ing 'Low Life'" in The Times, January 9, 1985.
Americans who are cared for through prepaid
19 This process is explained in William Schwartz and Henry
health maintenance organizations may face thisReport: Rationing Hospital Care, Lessons for
Aaron, "Special
same kind of limitation on the range ofBritain,"
available
New England Journal of Medicine 310:1 (January 5,
1985),
alternative therapies. Instead of the British 52. See also, Sheila McLean and Gerry Maher, Medi-
import-
cine, Morals and the Law (1983), Ch. 10.
ing the American doctrine of informed consent,
20 See the study of such decisions carried out on twenty-five
Americans might well import the British dilemma
renal dialysis units in England in V. Parsons and P. Lock, "Tri-
posed by rationing health care in a society age
premised
and the Patient with Renal Failure" Journal of Medical
on patient sovereignty. Ethics 6 (1980), 173.

References
1 Argued in the House of Lords December 3-6, 1984. Report-
ed at [1985] 2 W.L.R. 480. The Court of Appeal decision is
reported at [1984] 1 All E.R. 1018. The High Courtjudgment
of Mr. Justice Skinner was delivered on February 19, 1982.
The quotes in the text are taken from the transcript.

25

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