must have some appreciation of the risks that the medical procedure in question
may go wrong. If a patient is not informed of the risk of complications and if one or
more of these complications arises ,then she may bring an action in negligence. The
basis of her claim is first that those who are treating her are under a duty to provide
her with information about the risks of the treatment ,secondly that this duty has
been broken ,and thirdly that she has suffered harm as had she known of the risk
?which did in fact materialise) she would not have consented to the treatment.
The leading case isSidawayv.Bethlem Royal Hospital Governors?1985). Mrs
Sidaway underwent an operation after having suffered for some time from a
recurring pain in her neck ,right shoulder and arm. The operation was performed
by a senior neurosurgeon at the Bethlem Royal Hospital. Even if the operation had
been carried out with all due care and skill there was a 1±2% risk of damage to the
nerve root and the spinal column. Although the risk of damage to the spinal
column was less than to the nerve root ,the consequences were more severe. The
plaintiff was left severely disabled after the operation. She brought an action in
negligence claiming that she had not been given adequate warning of the risks of
the operation. During the hearing it was revealed that while the surgeon had told
her of the risks of damage to the nerve root he had not told her of the risks of
damage to the spinal column. In acting in this way he was conforming to what in
1974 would have been accepted as standard medical practice by a responsible and
skilled body of neurosurgeons. The House of Lords rejected the claim that the
surgeon had acted negligently. An `informed consent' approach was rejected by all
the Law Lords ± except Lord Scarman. Some support was given to the suggestion
that the test which a court should use in deciding whether the advice given was
negligent was the same as that used in deciding whether medical treatment was
negligent ± theBolamtest [55]. This test provides that a health care practitioner:
`is not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men.'This approach was followed by Lord Diplock in the House of Lords. This obliga-
tion of disclosure applies to all types of medical procedure. A broader approach
was taken by Lord Bridge who said that a judge could disagree with the evidence
given to him:
`I am of the opinion that the 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.'He commented that:
`The kind of case I have in mind would be an operation involving a substantial
risk of grave adverse consequences ,as for example ,[a] 10 per cent risk of stroke
from the operation... In such a case ,in the absence of some cogent clinical
reason why the patient should not be informed ,a doctor... could hardly fail to
appreciate the necessity for an appropriate warning.'Where the risk of an adverse effect was slight or insignificant ,the information
could be withheld where this was an accepted practice within the community of
112 Nursing Law and Ethics