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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 informed consent to the proposed procedure. This means that the patient must not only be informed in broad terms about the nature and purpose of the treatment offered, but also of all material risks inherent in it,1 so that she may make a rational choice. The informed nature of the decision regarding whether to accept treatment, designed to allow the patient to make her own decision based on all relevant facts and 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's decision may not be the same as if she were in possession of all of the facts, and thus her autonomy compromised. However, it is far more difficult in practice to define what a material risk actually is in any given circumstance, and different jurisdictions adopt differing approaches regarding whether a risk should be considered material or not. *Med. L. Rev. 77 Essentially, there are two general approaches that may be identified with regard to the definition of a material risk: the professional standard (still used in England but rejected in Australia and New Zealand) and the patient standard (a modified version of which has become the preferred Antipodean alternative).3 The former defines a material risk as one that the reasonable doctor 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 that that particular patient would consider important. This is generally seen as unsuitable as a legal standard.5 The English approach is considered to represent the most paternalistic of the available models, and has been criticised as a consequence.6 Equally, the more patient-centred approach used in Australia and New Zealand is seen as being more autonomy enhancing, and thus providing the primacy of the patient's right to self-determination seen to be lacking in English law.7 But is this necessarily the case? Is it true that merely by shifting the focus of the definition of the materiality of a risk 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. Before examining the Antipodean cure, however, it is first necessary to define our problem: the paper tiger that is the English law regarding the disclosure of risk. Given the age of some of the major cases discussed in the next *Med. L. Rev. 78 sections, and the fact that the law has moved on to rely less on professional judgment, they shall be considered only briefly.

II. CONSTRUCTING THE PAPER TIGER: THE ENGLISH DEFINITION OF A MATERIAL RISK A. Negligence or Trespass?
Medical treatment given without any valid consent, however well meaning, is treated in law as is any other form of unauthorised touching, and constitutes a trespass to the person in civil law and assault in criminal law. However, there may be a distinction made between treatment given in the absence of any 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 the latter it is merely faulty. How English law differentiates between the two was considered in Chatterton v. Gerson. 8 Briefly, as long as the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base 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 judicial option for patients.11 Redress lies, in virtually all cases, in negligence, and this brings patients into contact with the central figurehead of our paper tiger - the test for the standard of care in clinical negligence in English Law: the infamous Bolam test, endorsed in Chatterton as the method of deciding whether or not the disclosure of risks (if the action were to be based in negligence) was to be considered 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 to attain the *Med. L. Rev. 79 required standard of care expected by the law of doctors, medical practitioners must act in a manner accepted as proper by a responsible body of medical men skilled in that particular art.14 Unfortunately, the italicised word in the quote above was forgotten by the courts between 1957, when Bolam was decided, and 1997.15 Rather, in those 40 years, the courts instead tended to hold that judges were not permitted to choose between the expert witnesses of the defence 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 the defendant and found for the plaintiff. In the House of Lords, the question was whether the judge had had 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 not sufficient 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 by preferring 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 a material risk would be a medical matter. The absurdly low level of justification for their actions that was expected of doctors did not go unnoticed: a series of judgments have given rise to a perception that all Bolam requires is that the defendant fields experts from his or her medical specialty prepared to testify that they would have followed the same course of management as did the defendant. If such experts can be identified, are patently honest and stand by their testimony vigorously, neither they nor the defendant will be asked to justify their 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 risk was, however, to be fully considered by the House of Lords less than five years later, in the landmark case 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 recurrent pain in her shoulder, arms and neck. After over a decade of unsuccessful treatment, shewas offered an operation to relieve the pain. Even if the operation was carried out perfectly, however, there was an inherent risk of spinal cord and nerve damage, assessed as being between 1 and 2%. Mrs Sidaway claimed that she was not informed of this risk, but she consented to and underwent the procedure. Unfortunately, the risk materialised and she was left partially paralysed. She did not contend that the operation was carried out negligently, but that the warning of risks provided to her was inadequate and that a material risk (the chance of nerve damage) should have been disclosed. In essence, then, the case rested squarely on the issue of the definition of the materiality of risk--was the undisclosed risk material, and how do we determine that? Of the nine judges to hear the case in all courts, all were agreed that Mrs Sidaway's claim failed. This was mainly due to the fact that, as the surgeon had died before the legal action, it was impossible to tell what advice had been given. As Lord Scarman noted, the case was at best not proven.19 Nevertheless, the judges' definitions of a material risk varied widely. Indeed, three differing strands of opinion are identifiable in the House of Lords; 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 judges viewed 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--is integral to the creation of our paper tiger. It is widely considered to be the least supportive of the right to autonomy of patients.21 The direction of his Lordship's judgment was predicated upon a refusal to distinguish between the technical and non-technical aspects of a medical practitioner's duty towards her patient. He therefore refused to acknowledge that there was a difference between diagnosis and treatment (as technical aspects), and risk disclosure (non-technical). Consequently, when considering the doctor's conduct with respect to a single comprehensive duty,22 Lord Diplock could see no reason not to apply Bolam as he would to a case in negligence.23 The application of a non-diluted form of Bolam in 1985 meant that, just as in Maynard, as long as the defendant doctor could find some others who would not have warned of the risk, the plaintiff could not succeed in having it defined as material. As I demonstrate below, the other judgments proposed what appear at first sight to 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 judgment that actually rejects the use of Bolam to decide whether a specific risk is material. He is thus the only judge in Sidaway who advocated an approach similar to the Antipodean panacea. Lord Scarman's rejection of Bolam rests on his definition of risk disclosure as totally different from diagnosis and treatment, 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, which undoubtedly recognises a right in the patient to decide whether he will accept or reject the treatment proposed, should permit the doctors to determine whether and in what circumstances a duty arises requiring 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 that Bolam was ill-suited to protecting.25 Rather, he identified the doctrine of informed consent, developed and used in some US jurisdictions and in Canada, as an alternative that would protect the rights of patients.26 Thus, the courts should not allow *Med. L. Rev. 82 medical opinion as to what is best for the patient to override the patient's right to decide.27 His Lordship therefore accepted the test laid out in the American case of Canterbury v. Spence, which he credited with being a landmark judgment in the development of the doctrine.28 Based on the premise that the patient has the right to autonomy and 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 forego the proposed therapy.29 The judgments of Lords Bridge and Templeman (Lord Keith concurring with Lord Bridge) constitute the numerical majority in the case and the middle way between Lord Diplock's narrow view of the case and the expansive primacy of principle that characterised Lord Scarman's judgment. Lord Bridge recognised, 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. He thus identified the issue in the case as being whether the doctor's duty with regard to advice was to be the same as the others and, if different, how it might be defined. He considered the doctrine of informed consent which, interestingly, he distinguished from Bolam on the basis that it prioritised patient 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 the approach of Lord Diplock. Rather, Lord Bridge's concern was that the court should not be deprived of the benefit of medical evidence--something that he saw informed consent as curtailing. He therefore defined 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 medical evidence (and therefore Bolam ) should still apply, the slight distinction left the courts rather than the medical profession as the ultimate arbiters of materiality: *Med. L. Rev. 83 [a] judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably 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 be applied 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 was seen as slightly--but not totally--different to the other parts of medical practice. The approach taken by Lord Templeman was broadly the same, though somewhat confusing as he spends very little time actually defining what the law is. However, he too clearly held that the final arbiters of materiality should be the courts.34 What can be seen from the above is that the judgments of their Lordships throw up several totally different, and irreconcilable, approaches. Moreover, since all judges were agreed that Mrs Sidaway should lose her case, none can be said to be dissenting. This is what makes it impossible to assign a ratio decidendi to the case.35 All that can be done is to highlight the differences. Given this, what is important is not so much what the House of Lords decided, but how the disparate opinions were to be interpreted 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 to interpret it. In two judgments, the Court of Appeal demonstrated that Bolam was in rude health, and that the concept of patient autonomy must take second place to professional practice. The first is the decision in Blyth. 36 Mrs Blyth was offered, consented to and received, an injection of the contraceptive drug Depo-Provera. The drug caused significant side effects, and Mrs Blyth submitted that, had she been warned of them, she would not have consented to its injection. Moreover, she argued that she had asked questions and not received full answers--providing quotes from Sidaway as authority. Mrs Blyth's contention was that Sidaway made *Med. L. Rev. 84 it quite clear that there was no discretion available to doctors when questions were asked, and that its espousal of Bolam was to be limited to (as in the case of Mrs. Sidaway) unsought information. This was rejected by the Court 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 substantive judgments), 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 that where questions are asked by the patient, or doubts are expressed, a doctor is under an obligation to put the patient in possession of all the information The amount of information to be given must depend on the circumstances, and as a general proposition it is governed by what is called the Bolam test.37 Despite the references to the judgment of Lord Bridge, Lord Diplock's interpretation was applied. Two months later, the Court of Appeal revisited the issue and took the same line. The issue in Gold was a failed sterilisation.38 Mrs Gold claimed that she was not told of the risk of failure inherent in sterilisation operations, nor of a less invasive alternative available (that her husband has a vasectomy instead). The plaintiff's argument was that Bolam did not apply to non-therapeutic procedures such as sterilisations, as Sidaway was concerned with therapeutic procedures. The Court of Appeal rejected the argument, holding that Bolam, as explained by Lord Diplock should be applied, and that any attempt to distinguish between therapeutic and non-therapeutic procedures was wholly unwarranted and artificial.39 Interestingly, in neither case is there any mention of the patient's interest in being able to make her own decision, much less support for it. Rather, the judgments are an exercise in protecting medical discretion. Both cases are easy to criticise. Nevertheless, they are nothing more than misinterpretations of Sidaway, since they failed to distinguish between Lord Diplock's use of Bolam and that of the majority in the case. However, it is clear that Lord Diplock's interpretation of the materiality of a risk appeared to have taken a stranglehold in the English courts. This, then, is the paper tiger of this article's title: a definition of the materiality of risk that deliberately shuns any notion of patient autonomy, privileges the medical practitioner and encourages medical paternalism. It is a scary beast. Bolam, it seemed, was incompatible *Med. L. Rev. 85 with patient choice, and privileged 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 REJECTION OF 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 were quietly 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 a process rather than a evolutionary leap.40 Indeed, the retreat from Bolam in Australia began even before Sidaway, in the Supreme Court of South Australia in the 1983 case of F v. R, ultimately relied upon by the High Court of Australia in Rogers. 41 The facts of F v. R constitute a classic failed sterilisation scenario. A married woman who had already had three children did not want any more children and was advised by her doctor to undergo a sterilisation by tubal ligation. She consented to the procedure, which was carried out properly, but was not warned of the risk (assessed as being less than one per cent), that the operation might reverse itself. The plaintiff's claim was unanimously dismissed 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 was reached. *Med. L. Rev. 86 King C.J. began by stating that the issues in the case involved balancing different interests. Thus, the resolution of the present case relate to the extent to which negligence in giving or omitting to provide information is to be determined by reference to the practice existing in the medical profession, and to the weight to be attached to the patient's right to make the critical decisions regarding his own life and welfare.42 Moreover, these interests were sometimes of such a nature that they could not help but be competing. In particular, there was at times an inevitable conflict between the duty of the doctor to act 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 in consequence formulate the test largely, and sometimes exclusively, in terms of the practice prevailing 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 upon himself to provide guidance, the Chief Justice formulated principles that were to become influential in determining the scope of the doctor's duty in risk disclosure. Thus, what a careful doctor must disclose 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 duty extended only to matters which might influence the decisions of a reasonable person in the situation of the patient, so that that patient could make an informed choice about whether to undergo the treatment.47 If the risk of harm is so low or sufficiently trivial that the patient would not be influenced by it there would be no need to disclose it. The second factor, the nature of the treatment, is related to the first.48 This provides that the more serious the procedure, the more necessary it is to keep the patient 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 in determining 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 the risks inherent in the proposed treatment. Factors three and four were more concerned with the patient herself. The third, the desire of the patient for information, was based on the principle that it is the right of every human being to make the decisions which affect his own life.50 Thus, a request for information on the part of the patient would normally require the doctor to provide it. The exception would be if to do so would be likely to harm the patient. In such circumstances, reasonable care for the patient may justify or even require an evasive or less than fully candid answer even to a direct request.51 However, he warned that the doctor should hesitate long before coming to such a conclusion.52 The fourth factor was the temperament and health of the patient.53 This provides that a doctor might be justified in withholding information about risks if she reasonably believed that the patient's mental or physical health might be damaged by the information, or that the patient's temperament or emotional state is such that he would be unable to make the information a basis for a rational decision.54 It is nothing more than a further exception allowing the doctor to invoke her therapeutic privilege. The final factor was the general surrounding circumstances.55 This acknowledges that sometimes the extent of the duty to advise might be limited by situations such as emergencies or the absence of opportunity for detached reflection.56 This factor seeks to include in the list a recognition of the realities 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 to be similar to the principle of necessity. This list of factors, which King C.J. held were not intended to be exhaustive, contains some elements that 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 instead whether the risk should be disclosed. King C.J. used Bolam to determine materiality but did not interpret it in the way that the English courts were doing at that time, but instead in *Med. L. Rev. 88 the way that Bolitho was later to do. So, when answering the question regarding the adequacy of the warning about risks, much assistance will be derived from evidence as to the practice obtaining in the medical profession. I am unable to accept, however, that such evidence can be decisive in all circumstances'.57 Given this, the arbiters of the materiality of risk had to be the court, rather than the medical profession: The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. This is a question for the court and the duty of deciding it cannot be delegated to 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 guided and assisted by the expert evidence. It will not produce an answer merely at the dictation of the expert evidence.59 Moreover, he cited several cases in Australia, New Zealand, Canada and England that 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 by the court rather than the medical profession. The latter and its evidence would guide the former, but would be of persuasive rather than binding influence. Then, the factors would determine whether the doctor must disclose the risk to the patient. But it is important to note that the F v. R does not reject Bolam --it only rejects old (pre *Med. L. Rev. 89 Bolitho ) Bolam. It did this because old Bolam was seen 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 be something of an understatement. It openly and consciously stated its rejection of the use of Bolam in determining whether a risk should be defined as material (although, as I argue in the next section, it was not entirely successful in that regard). The facts of the case illustrate the perceived magnitude of the decision. Maree Whitaker had for many years been blind in one eye. She consulted Christopher Rogers, an opthalmic surgeon, who advised her that he could offer an operation that would not only improve the appearance of her bad eye, but also potentially restore some sight to it. Mrs Whitaker consented 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 that eye, due to sympathetic opthalmia, which the court assessed as having a likelihood of 1 in 14,000 of occurring. Mrs Whitaker sued on the basis that the failure of the doctor to warn her of the risk constituted negligence, as it was material. She won damages at first instance, and the defendant's appeal 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 that the judges had to decide between. The appellant submitted that [h]aving found that there were two responsible bodies of medical opinion on the issue [of whether to warn of the risk], it was not open to the judge to choose between them. 61 Despite qualifying statements that ceded to a new Bolam outlook,62 the quote makes it clear that since Rogers had found experts who would have acted as he did, then that should be the end of the matter--an old Bolam way of looking at things. Moreover, a reference to professional expertise with regard to warning of risks only serves to strengthen the suspicion that the appellant was arguing that these were his decisions to make as a doctor.63 The respondent, meanwhile, submitted that Bolam does not establish that simply *Med. L. Rev. 90 because there is a body of reasonable medical opinion a practitioner who follows that opinion cannot 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 risk disclosure was just another part of medical practice involving medical skill, and should therefore be treated as such. Whitaker, conversely, submitted that the issue was one of the patient's right to autonomy, 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, it was noted that Lord Diplock gave the principle a wide application; while Lords Bridge and Templeman asserted the court's authority as the ultimate arbiters of what was and what was not reasonable.66 However, the majority continued by highlighting what it saw as the major shortcoming on Bolam in the context of risk disclosure: one consequence of the application of the Bolam principle [in this context] is that, even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance ; medical opinion dictates whether the risk should be disclosed and the express desire of a particular patient for information does not alter that opinion or the legal significance of that opinion.67 For this reason, it argued that statements by various judges in Sidaway requiring that questions should be answered fully indicate a shortcoming in the Bolam approach.68 It also asserted that Bolam had already come under pressure in the Australian courts, even in the context of diagnosis and treatment.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 it quoted King C.J. in F stating that the medical profession must conform to legal rather than professional rules as evidence of discarding Bolam. 71 Its first principle was that all medical treatment 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 the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the medical practitioner 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 an operation was carried out to the requisite standard of care was a decision of a different order to one regarding whether the patient had received sufficient information.74 Since Bolam, as interpreted by the court, could not be trusted to be sensitive to patient autonomy, or even to force doctors to answer questions 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's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it.75 The test consists of two parts. The first, that of the reasonable person in the patient's position, was defined by the court as objective. This, like the subjective criteria, would be decided by reference to the 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 important that this part of the test is not oversold. Perhaps surprisingly, the High Court in *Med. L. Rev. 92 Rogers did not really consider what was meant by the patient's position--a fact made clear in Rosenberg, where the case transcript shows Gummow J. questioning the appellant's barrister regarding the precise meaning of the phrase, and whether it constitutes attitude of mind or economic circumstances.76 The reply is that the issue had not been considered in Australia, but that it had been in Canada in the case of Arndt v. Smith. 77 Despite identifying this problem, the court in Rosenberg failed to address the issue in the judgment. From what it is possible to see from Rogers, it would appear that it was meant to be interpreted quite narrowly. Although the court suggested that Mrs Whitaker might have been successful under this ground, this was due to the physical characteristic of having one good eye rather than any subjective preference on the part of the patient.78 Indeed, this approach is consistent with that of the Canadian court's decision in Arndt, where although subjective criteria (such as the patient's reasonable beliefs, fears, desires and expectations) would be considered, they would usually be revealed by the questions posed, and thus depend on the patient asking 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 that that 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 the test to the facts in the case before them, the court found, unanimously, that the risk was to be considered 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 the operation, she even enquired as to whether something could be put over her good eye to cover it and ensure that nothing happened to it.81 In this context, it was held that Mrs Whitaker's failure to ask the specific question that would require the answer was irrelevant. To decide otherwise would have been to punish her for not being sufficiently learned to ask the precise question about a risk that she had not been informed of and could not be expected to know about--a state of affairs described by the majority as curious', and '[demonstrating] vividly the dangers of applying Bolam .82 Thus, it was enough 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 right to make her own decision, and to take too much power away from the court itself regarding the definition of the standard of care. So, the court wanted to dispense with it. Moreover, it recognised that risk disclosure is not an area of practice requiring technical medical skill, and thus distinguished it, as Lord Scarman had done in Sidaway, from diagnosis and treatment. In so doing, it had defined as material a risk that was assessed as having only a 1 in 14,000 chance of materialising, and did so under both the subjective arm of its new test and, most probably, would have done so under the objective arm also if it had had to. Patient autonomy seemed alive and well, and doctors should be quaking 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 Services Consumers' Rights came into effect in 1996. It places heavy emphasis on information disclosure and informed 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 Fully Informed, 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, would expect 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, side effects, 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 research requires, and has received, ethical approval; and *Med. L. Rev. 94 (e) Any other information required by legal, professional, ethical, and other relevant standards; 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 an informed choice or give informed consent.87 The third states that honest and accurate answers must be given to questions, including those concerning the qualifications and identity of the provider; the recommendation made and the results of research.88 The final part gives consumers the right to a written 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 the doctor's qualifications and alternative treatments. It would also appear that the word including in the first 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 she sees 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 not conclusive, 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 circumstances of 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 does not have her needs catered for, unless she asks questions. Ultimately, the Code's provisions allow the 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 the current Commissioner's endeavour to develop a duty to provide fair and balanced information, based on objective data, where available. Where the provider recommends a complementary or innovative treatment s/he believes is effective, the patient should be told that its efficacy is not evidence-based and 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 its rejection of Bolam in Rosenberg v. Percival, and there would seem to be no going back. In New Zealand, Bolam was consciously rejected by the Code, which prefers an approach that does not, on the face of it, go as far as Rogers, but makes up for this in other ways. Even in England, as discussed below, the courts have sought to distance themselves from Bolam, casting envious glances at the Australian approach. The New Zealand Code also highlights a deficiency in our panacea--its focus on risks results in a narrow focus. As Skegg notes, the provision of information is of limited value in the absence of the preconditions of effective communication.95 To this end, Right 5(1) of the New Zealand 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 provider to communicate openly, honestly, and effectively. However, this has not been recognised by the courts 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 High Court of Australia itself had an opportunity to reconsider its approach to risk materiality in the case of Rosenberg v. Percival. 96 Rogers was unconditionally supported, and any *Med. L. Rev. 96 forlorn hopes that remained that the court would reject its previous ruling were dashed.97 In a judgment rich with academic insight and reflection, Kirby J. noted that few today argue against the line of authority recognised in Rogers .98 The court did expand on the practical application of the test in Rogers, and for this reason we shall return to it in the next section. However, the law in Australia became, and continues to be, settled in favour of the Rogers approach--no surprise since, as I argued earlier, the judgment was itself the result of evolution rather than revolution. In the meantime, courts in England have edged away from our paper tiger. Several decisions in the English lower courts have suggested that the Rogers definition of the materiality 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 Bristol Healthcare NHS Trust. 99 This is because the first two, decided before Bolitho and in the shadow of Rogers, rejected expert evidence on behalf of the defendants and found for the plaintiffs. The latter is important because it was the first case since Rogers to reach the Court of Appeal in England. In all three cases, the law was wrenched back from the clutches of Blyth and Gold, and led towards our panacea. In McAllister, the judge found that the failure to disclose a risk of sensory deficit was unreasonable and therefore negligent despite evidence on behalf of the defendant that other doctors would not have warned of it. In reaching that conclusion, Rougier J. not only quoted all three substantive Bolam ite judgments in Sidaway --including Lord Diplock's, with revisionism dictating that his judgment was substantially the same as those of Lords Bridge and Templeman--but also asserted and utilised his new Bolam power to choose between medical experts. Moreover, particularly given the autonomy-free zones that constituted the judgments in Blyth and Gold, the notion that a patient is entitled to be given enough information on the risks of an operation to allow him or her to exercise a balanced judgement; after all, it is their life that is going to be affected, signified a *Med. L. Rev. 97 welcome 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 the judge emphasised Lord Bridge and Templeman's assertions that the court may choose between competing strands of medical evidence, and that the patient had a right to make treatment decisions for 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 for materiality. This was, seemingly, summarily dismissed by Morland J., who held simply that it is the decision in Sidaway and the test in Bolam which I must, and do, apply.103 Given the support for a less restrictive view of Bolam, however, and the assertions of the patient's right to choose and the court's to decide on materiality, such substantial quotes from Australia may perhaps be seen as more of a nod and a wink, suggesting to higher courts a change in the law might be appropriate. As Puxon noted, 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 five years later in the case of Pearce. In that case, Lord Woolf continued the revisionist trend by stating that the views of the majority most clearly appear from the speech of Lord Bridge However, Lord Diplock also gave a speech, which adopted the same approach of that of Lord Bridge.105 Quotes were given, once again, from all three Bolam ite judgments, which were presented as saying substantially the same thing. However, Lord Woolf then appeared to conflate the reasonable doctor and reasonable patient tests: if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course 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 course he or she should adopt.106 This is a somewhat amorphous statement. On the one hand, it may be interpreted as stating that the reasonable doctor will disclose everything that the reasonable patient would want to be told of. On the other hand, it may be suggested that the use of the word significant means that the reasonable doctor must disclose only risks that are both significant and material (information that the patient needs to make an autonomous choice). Alasdair Maclean, for example, has argued that significance and materiality are divorced from each other, and ask different questions. Significance concerns the normative evaluation of the risk, whereas materiality concerns the separate, sociological issue of whether the risk was reasonable and patient's decision might be affected by its disclosure.107 Despite the second option appearing most logical from the wording of the quotation, I remain of the belief that Lord Woolf intended the former. This is because later in the judgment he held that where there is what can realistically be called a significant risk, then, in the ordinary event the patient is entitled to be informed of that risk--with out mention of any separate requirement of materiality.108 This view is shared by the English Court of Appeal in Wyatt v. Curtis and the Supreme Court of Ireland in Fitzpatrick v. White, which viewed the words significant and material as interchangeable.109 Both require the same information to be disclosed and, in both cases, medical evidence is useful but not decisive. Moreover, the factors in F v. R, accepted in Rogers, have their own version in Pearce with Lord Woolf stating that a doctor, has to take into account all the relevant considerations [in determining what risks to inform patients of], which include the ability of the patient to comprehend what she has to say and the state of the 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 paper tiger, and even envious glances cast at our panacea. Certainly, the pull of Bolam becomes ever weaker 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 duty upon 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 second only to failure to diagnose as the most probable source of the complaint.114 Furthermore, she ended the 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 are practical in nature, such as that warning about small risks is simply not effective,117 and that some patients simply do not want to be unsettled by unnecessary disclosures.118 Others are more doctrinal, such as that the test can easily become a prop to disappointed patients resulting in the imposition of unrealistic and unreasonable professional obligations,119 and the consequences of the inevitable rise of defensive medicine, that being that many doctors *Med. L. Rev. 100 would leave the profession.120 But is the decision in Rogers really that groundbreaking? As Callinan J. dryly commented in Rosenberg, after noting the consternation caused by Rogers, [n]o doubt the manufacturers 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 to the 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 merely rejected old Bolam, and specifically the idea that, once the defendant had found a body of opinion that would do as she had done, then that was the end of the matter and the judge was unable to declare her conduct negligent. As Gleeson C. J. noted in Rosenberg, the relevance of professional practice 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 in its rejection of that interpretation of Bolam, and was in fact at pains to point out that medical evidence was not in itself being rejected. King C. J. held that '[i]n many cases an approved professional practice as to disclosure will be decisive.123 Bollen J. expressed a similar sentiment, noting that expert evidence will assist the court and that the court will afford great weight to it.124 All that was stated in F was that the courts would refuse to produce an answer merely at the dictation of the expert evidence because then the court would abdicate its duty to decide whether in law a duty existed.125 Exactly the same approach was adopted in Rogers itself, where it should be noted that even the plaintiff's submission states only that Bolam does not establish that simply because there is a body of reasonable medical opinion, that a practitioner who follows that opinion cannot be guilty of negligence.126 This was reflected in the judgment of the majority, who were at pains to point out that medical 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 of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on the appropriate standard of care after giving weight to the paramount 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 expert evidence will have a bearing on materiality but is not a question that is to be concluded on the basis of the expert medical evidence alone.128 But how, then, can this be the case when the court itself claimed to be discarding Bolam, and instead basing the test on the patient rather than the doctor ? The answer lies in the factors identified by King C. J. in F v. R relating to the doctor's duty to disclose, which essentially constitute exceptions to that duty. All but one of those factors contains some element where medical evidence is relevant--sometimes even crucial. The exception is the first category, the nature of the matter, where the Chief Justice held that the doctor must disclose all risks that 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 patient informed. Moreover, '[t]he existence of reasonably available alternative methods of treatment must be an important factor in determining what treatment demands'.129 The reasonable availability of treatment 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 to provide evasive or less than fully candid answers to questions on the rare occasions that the doctor in the exercise of his skill and judgment judges that the patient is asking not out of a desire to find the answer, but instead in order to seek reassurance.130 He continued by holding that the doctor should 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 medical evidence 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 withhold disclosure 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 is prevalent 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 general surrounding circumstances. This suggests something similar to the principle of necessity, but the Chief Justice also pointed out that the court will also look at the existence of alternative sources of advice.133 If a doctor may evade a duty to disclose by claiming that there was an alternative source of advice, then it can only be presumed that must be a reasonable one--and again we return to medical evidence. Furthermore, just after he outlined the five circumstances, King C. J. explicitly stated that medical 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 taken into account. Finally the question must be: Has the doctor acted reasonably in the exercise of his professional skill and judgment, or, in the way that Bristow J. put it in Chatterton v. Gerson, in the way a careful and responsible doctor in similar circumstance would have done? In answering this question much assistance will be derived from evidence as to the practice obtaining in the medical profession. 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 the test 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, it may be argued that the House of Lords in Sidaway does exactly the same thing, in the sense that the Bolam ite majority asserted the right of the court to declare material risks that medical professionals would 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 the non-disclosure as being in conflict with accepted and responsible medical practice, the judge might in certain circumstances come to the conclusion that disclosure of a particular *Med. L. Rev. 103 risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent 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 to decide on the question of materiality. Of course, Lord Diplock infamously espoused an old Bolam approach, but English law has, albeit belatedly, moved away from the dicta expressed in Blyth and Gold that his judgment could be equated with those of the rest of the Bolam ites in Sidaway. Thus, the majority in Sidaway, despite following Bolam, was asserting what is essentially the same as the objective strand of the Rogers test--that while medical evidence is relevant to the determination of the duty to disclose, it is not decisive. Given this, then, the notion of Bolam being discarded by the courts in Australia rests on the subjective arm: that a risk is material if the doctor knows or ought to have known that that specific patient would regard the risk as important. Once again, Sidaway compares surprisingly well. This is because, in order for the subjective arm in Rogers to bite, it is first necessary for the patient to communicate to the doctor the facts that put her in possession of information that must be considered. To give an example, if the patient is a keen amateur football player, and thus a small risk in knee joint mobility might be of significance to her, our doctor cannot know unless she is told. In this regard, actions by the patient are required to trigger the need for knowledge in the medical practitioner. Thus, while Gummow J. in Rosenberg held that questions were not the only way of satisfying the subjective limb, stating that there are a multitude of potential circumstances (none of which he ventured to enunciate) where a court might find liability, it is clear that in almost all situations it is through questioning that the patient will make the significance of a risk apparent to the doctor.136 It is on the basis of the patient's keen interest in and incessant questioning about the procedure that was the basis of the doctor's liability in Rogers itself.137 In this way, then, the subjective limb of Rogers will almost invariably be triggered by an interaction between doctor and patient--such as that sought by the New Zealand Code. Again Sidaway compares well, with the Bolam ite majority unanimous in its view that, when questions are asked by the patient they should be answered fully, and in this occasion Bolam is a useful tool rather than a *Med. L. Rev. 104 hindrance. Lord Bridge was unequivocal regarding the answering of questions. He stated simply that when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must, in my opinion, be to answer both truthfully and as fully as the 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 been informed that there was an aggregate risk of between 1% and 2% of some damage which might vary from irritation to paralysis.139 Even Lord Diplock was of the opinion that the patient's asking of questions should elicit an honest and full 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 informed of any risks there may be involved of which I am not already aware from my general knowledge, so that 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 tell him 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 test where the doctor knows that the patient wants the information. In terms of risks that the doctor 'ought to know' that the patient wants to know, Bolam can be a help rather than a hindrance. This is because although the reasonable doctor test refers to doctors, it does not mean that it is totally insensitive to patients. So, if we reconsider the case of the amateur footballer who might suffer a loss of knee joint mobility, if the doctor knows that the patient would consider joint mobility important, a court may find that it is a risk that the reasonable doctor must make the patient aware of. If interpreted in this way, it has the advantage over the reasonable patient test of allowing different risks to be held by the court to be material for different patients--thus allowing a flexibility which, almost counter-intuitively, makes it more respectful of the patient's autonomy. Moreover, it does so more than a generic reasonable patient test, as the reasonable *Med. L. Rev. 105 patient is not a keen amateur footballer, and would thus not require that the information be disclosed. In addition, this would have support from the General 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 and Gold --is based on a false premise. Sidaway in no way supports what the Court of Appeal in those cases held that it did. Rather, there is much in the judgments in Sidaway, even in the speech of Lord Diplock, which is similar in effect to what was decided in Rogers. The problem with Sidaway, as defined by Rogers and by some commentators, has been Bolam itself. Nevertheless, Rogers --our panacea--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 Smith and Pearce. Indeed, Bolam can have advantages in helping to raise standards, not least because the medical ethics in the area are extremely stringent. The General Medical Council, which has sole authority in England to hold the registration of doctors and has a statutory power to give ethical advice, covers the issue of informed consent in its new guidance on consent.142 Paragraph 7 considers the amount of information to be given to patients, and it begins by noting that the amount of information that should be made available to patients will vary according to individual circumstances. These include the patient's wishes, needs and priorities', her level of knowledge and understanding of her condition, the complexity of the treatment and the level of risk involved. Paragraph 9 then lists information that patients 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 will necessitate lifestyle changes in future, the existence of alternatives, including those that are not available at the facility that the patient is currently in, reminders that patients have the right to seek a second opinion. The ethical imperative on the part of the doctor, however, is to communicate with the patient rather than just list the risks inherent in the treatment. Thus, the general principles listed at the beginning of the guidance require doctors to listen to and respect patients' views, and also to *Med. L. Rev. 106 discuss with patients their diagnosis, prognosis and treatment options.143 The key principle in Part 1 is partnership, and this is emphasised in Part 2 when the guidance states that the 'exchange of information between doctor and patient is central to good decision-making.144 Furthermore, doctors are told that they should explore the issues with patients, listen to their concerns, ask for and respect their views, and encourage them to ask questions.145 This requirement to engage with the patient 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 places no obligation on the doctor to engage the patient in discussion before questions are asked--it is instead another version of English law's requirement to list risks--and it is therefore up to the patient to trigger the subjective limb of the Rogers test. The GMC guidance, on the other hand, demands all of this with respect to unsolicited information. It is, in this regard, much closer to what the New Zealand Code envisages. The advantage of the GMC document is that it contains this breadth that Rogers lacks. Ironically, it is through the medium of Bolam that this enhancement to patient autonomy may be achieved. How might it be possible, then, to use the GMC's ethical guidance as the legal standard and thus utilise Bolam in the way that I have described? The most obvious (if slightly glib) answer is that all that it would take is judicial will. The guidelines are there, and they are in theory an expression of what the GMC expects from its doctors. Moreover, the GMC makes it clear that doctors should expect to be judged by the standards outlined in such documents.146 It would not be unreasonable to expect that the law held doctors to that. The courts could simply say, if they so wished, that a reasonable doctor follows guidelines. Therefore, a doctor who fails to find out about her patient and their preferences is not following a responsible body of medical opinion, and would thus be vulnerable to a Bolitho finding of illogicality even if she found other doctors who would say that they would have done as she did. Indeed, the question of using guidelines to ascertain standards of care, particularly in this age of increasingly evidence-based practice, is hardly new.147 Moreover, the traditional objection to the inflexible use of *Med. L. Rev. 107 guidelines to define the legal standard of care would not apply in the area of risk disclosure. As Samanta et al note, the principal objection is that strict adherence to the guidelines might fetter clinical discretion and autonomy and define too inflexible or unrealistic a standard for clinical practice.148 Yet, this problem is, at least to this author, inherent only in clinical decisions. Owing to the fact that risk disclosure does not involve a matter of technical medical expertise, but may instead be defined as ethical, it is reasonable to state that the guidelines must be followed unless there is a good reason for not doing so. Indeed, it is precisely this lack of a technical medical aspect to risk disclosure that has encouraged judges in England--from Lord Scarman on--to reject the constraints of old Bolam, even before Bolitho, and make themselves the ultimate arbiters of materiality. This article argues only that the use of GMC guidelines is something that the courts might do if they were so minded. Yet, it is a way through which doctors might be judged by the ethical standards 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, an approach eradicated by subsequent English courts. Equally, our panacea is not the cure-all that it is presumed to be. Indeed, it does not even dispense with Bolam as it claims to. Rather, it looks at risks through the eyes of the reasonable patient instead of the reasonable doctor, and is far less flexible than its predecessor, despite its superficial nods towards greater autonomy. Yet, herein lies the problem: both the English and Australian rules for risk disclosure only go so far as trying to ascertain what risks exist that the patient should be told about, and thus simply ask whether the doctor has warned the patient of them. They do not prioritise, unlike the New Zealand Code or the GMC guidelines, communication between doctor and patient. This has been recognised by Maclean who notes that, the law effectively restricts consent to its role in granting the necessary permission to justify healthcare interventions.149 Patients are essentially abandoned to their own decisions, right or wrong. Nowhere is this better *Med. L. Rev. 108 demonstrated than in the recent case of Al Hamwi. 150 The plaintiff had sought amniocentesis to test for Down's syndrome, a history of which there was in the family, with a view to aborting the foetus if the test were positive. However, her rudimentary grasp of English meant that she misunderstood what she was told, and she left the session with her doctor believing that the test carried a 75% chance of harming the foetus, and so changed her mind and did not have the amniocentesis.151 The court held that it would be too onerous a duty to require doctors to ensure that patients had understood the information.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's autonomy was compromised--despite receiving adequate information--because she did not make the decision that she wanted to make due to the failure in communication. The focus on risk disclosure rather 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 the GMC guidance's encouragement of communication between doctor and patient, would have been far more helpful in protecting Mrs Al Hamwi. The ironic part of this is that, particularly in light of the GMC's comprehensive guidance, Bolam is far more 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 assumed to. By using Bolam to acknowledge the guidance as a gold standard that the reasonable doctor should follow, the law could do far more to protect patient autonomy than by drifting into the rather cosmetic changes that the Australian model would bring. Of course, this would leave the law as a hostage to fortune with regard to the continued excellence of the guidance, but in the short term at least it would make Bolam supportive of patients' autonomy for once. That would indeed be a big change. School of Law, University of Leicester. I would like to thank the British Academy for funding to go to Australia and New Zealand to carry out the research for this article. I would also like to extend my thanks 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 Christian Witting for all their help. Finally, my thanks to Professor Mark Bell for his useful comments on this paper, and the Law Department at the University of Dundee, whose comments after my staff seminar there were most useful, particularly Professor Pam Ferguson and Dr Alasdair Maclean and the editor and 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 negligence rather 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 (Ashgate 2007), who argues convincingly that the form of autonomy assumed by academics to be practised by the courts is different to the reality of 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 paras 10.106-10.110.

4.

See s.III(B)). In recent years, New Zealand law, which did not overtly espouse the subjective part of the Australian test, has moved towards 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 : A Medical Litigation Revolution? (2000) 8 Med. L. Rev. 85. See also E. Jackson, Medical Law: Text, Cases and Materials (Oxford University 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. See also 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. Chalmers and 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 of Treatment (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) 9 Med. L. Rev. 1; H. Teff, The Standard of Care in Medical Negligence - Moving on from Bolam (1998) 18 Oxford Journal of Legal Studies 473; K. Norrie, Common Practice and the Standard of Care in Medical Negligence (1985) 97 Juridical Review 145 and M. Jones, The Bolam 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 All E.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 courts treat 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 and the Law (Blackwell 1992) at 65); Montgomery notes that the outcome of the case was not matched by agreement on the legal tests to be applied (J. Montgomery, Health Care Law, 2nd edn (Oxford University Press 2002) at 243; McHale and Fox state that the diversity of the speeches means that to provide a coherent statement of the law is difficult (J. McHale and M. Fox, Health Care Law: Text and Materials, 2nd edn (Sweet and Maxwell 2006) at 372); and Jackson refers to the case as by no means clear (Jackson, op. cit. n. 6, at 269).

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 February 1987.

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) 1 Journal of Law and Medicine 239 at 239. See also N. Olbourne, The Influence of Rogers v. Whitaker on the Practice of Cosmetic Plastic Surgery (1998) 5 Journal of Law and Medicine 334 at 335-341, who states that the evolution from Bolam to Rogers in Australia was influenced by a variety of factors, while arguing that that the latter imposes unreasonably high standards on physicians. From a different perspective, Skene argued that the English courts had taken Bolam too far (L. Skene, Law and Medical Practice: Rights, Duties, Claims and 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 with Bolam); D.I. Cassidy, Malpractice - Medical Negligence in Australia (1992) 66 Australian Law Journal 67; J. Devereux, Australian Medical 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 of unsought information about risks, although the answering of questions does not appear to leave the doctor with a clinical or any other sort 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 to determine what risks are material is to hand over to the medical profession the entire scope of the duty of disclosure, and that this was unacceptable 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 had not 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) 24 S.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, 2 July 1954; Wells v. Surrey Area Health Authority, Unreported, Queen's Bench Division, 28 July 1978; Sankey v. Kensington and Chelsea and Westminster Area Health Authority, Unreported, Queen's Bench Division, 2 April 1982; and, most surprisingly (albeit absolutely correctly), 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 matters involving expertise if the practice is obviously wrong (ibid ). How these are consistent with the main submission quoted in the main text is not 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 support of 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 King C.J. in F stating that the court must give effect to the paramount consideration that a person is entitled to make his own decisions about his 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.

Page19

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 Services Consumers' 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 22 August 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 in New 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 New Zealand (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 Health Service (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 courts had supported Rogers, whose authority was never in doubt. See, for example, Breen v. Williams (1996) 186 C.L.R. 71, where it was held that Rogers ' took away from the medical profession the right to determine, in proceedings for negligence what mounts to acceptable 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 by substituting 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) 7 Medical 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 Bulletin 37.

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 the Medical Duty to Warn and Causation: Chappel v. Hart and the Necessity to Reconsider some Aspects of Rogers v. Whitaker (1998) 5 Journal 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 identified in 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 Wales Medical 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 established the 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.

Page21

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 the real 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) 14 Med. 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