medicine. The risks disclosed must be reasonably foreseeable. Lord Templeman
distinguished between general risks which would normally be known to the
patient and special risks which may be required to be disclosed. Lord Templeman
stressed that it was for the court to decide whether the practitioner had acted
negligently or not. No distinction is drawn between therapeutic and non-
therapeutic forms of care ?Goldv.Haringey Health Authority?1987)). While the
courts have traditionally been hesitant to scrutinise the responsible body of
professional practice ,one example of a case in which they did do so wasSmithv.
Tunbridge Wells?1994). Mr Smith ,a 28 year old married man with two children ,
suffered a rectal prolapse. Surgery was proposed and was undertaken. While the
operation was successful ,the plaintiff suffered nerve damage during surgery and
was left impotent. He brought an action claiming that he should have been
informed of the risk of impotence. His claim was upheld by Mr Justice Morland
who stated that:
`In my judgment by 1988 ,although some surgeons may still not have been
warning patients similar in situation to the plaintiff of the risk of impotence ,that
omission was neither reasonable nor responsible.'Until relatively recently this case could be regarded as very much the abberation.
However ,the House of Lords inBolithov.City and Hackney HA?1997) signalled a
different approach ?see Chapter 6). In this case Lord Browne Wilkinson stated
that:
`if in a rare case ,it can be demonstrated that professional opinion is not capable
of withstanding logical analysis ,the judge is entitled to hold that the body of
opinion is not reasonable or responsible.' [56]Admittedly this judgment is limited in scope and ,despite some suggestions made
at the time ,it does not at all mean that theBolamstandard in negligence ± the
standard of the responsible body of professional practice ± is dead. In addition,
these comments relate to diagnosis and treatment.Bolithoitself did not address the
question of disclosure of risk. However it may be indicative of an increasing
judicial willingness to take a `hard look' at the view expressed by a body of
professional opinion in the future. The application ofBolithoto diagnosis and
treatment was considered in the decision ofPearcev.United Bristol NHS Trust
?1999). Here the Court of Appeal looked at the decisions inBolithoand inSidaway.
Lord Woolf held that:
`if there is a significant risk which would affect the judgement 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 information is needed so that the patient can
determine for him or herself as to what course that she should adopt.'On the facts of the case the woman was advised against a caesarean section and the
child was delivered still born. There was a small risk of between one to two in a
thousand that the child would be stillborn. The claimant was unable to establish
that this was `significant'. Nonetheless ,although the claimant was unsuccessful in
this particular case the judgment itself can be seen as another step away from a
clinical judgement based on a patient-based approach to consent to treatment [57].
Consent and the Capable Adult Patient 113