Sidaway (A.P.) v Bethlem Royal Hospital and The Maudesley Hospital Health Authority and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scarman,Lord Diplock,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Templeman |
| Judgment Date | 21 February 1985 |
| Judgment citation (vLex) | [1985] UKHL J0221-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/18/245 |
| Court | House of Lords |
| Date | 21 February 1985 |
[1985] UKHL J0221-1
Lord Scar man
Lord Diplock
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Templeman
Parliamentary Archives, HL/PO/JU/18/245
HOUSE OF LORDS
My Lords,
The state of the evidence in this case compels me to the conclusion that the appellant has not made out a case of negligence against her surgeon, the late Mr. Murray A. Falconer. I regret profoundly that after a trial in the course of which the judge listened with great care to a substantial and complex volume of medical evidence and delivered a meticulous and detailed judgment, and after two appellate hearings (by the Court of Appeal and your Lordships' House), the conclusion should be that the plaintiff has failed to prove her case.
Such a result is, I believe, inevitable for a number of reasons. The issue is whether Mr. Falconer failed to exercise due care (his skill was not challenged) in the advice which he gave his patient when recommending an operation: I use the word advice to cover information as to risk and the options of alternative treatment. Whatever be the correct formulation of the applicable law, the issue cannot be settled positively for or against the doctor without knowing what advice, including any warning of inherent risk in the operation, he gave his patient before she decided to undergo it and what was his assessment of the mental, emotional, and physical state of his patient. The trial judge derived no help on these two vital matters from the evidence of the appellant. Mr. Falconer was not an available witness, having died before trial, and the medical records afforded no sure guide on either matter. Regrettable though a "non-proven" verdict is, it is not, therefore, surprising. Where the court lacks direct evidence as to the nature and extent of the advice and warning (if any) given by the doctor and as to his assessment of his patient the court may well have to conclude that the patient has failed to prove her case.
This lack of evidence is unsatisfactory also from a purely legal point of view. I am satisfied, for reasons which I shall develop, that the trial judge and the Court of Appeal erred in law in holding that in a case where the alleged negligence is a failure to warn the patient of a risk inherent in the treatment proposed, the " Bolam test", to which I shall refer in detail at a later stage of my speech, is to be applied. In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes. This being my view of the law, I have tested the facts found by the trial judge by what I believe to be the correct legal criterion. In my view the appellant has failed to prove that Mr. Falconer was in breach of the duty of care which he owed to her in omitting to disclose the risk which the trial judge found as a fact he did not disclose to her.
I turn now to the detailed facts and issues in the case.
This is an appeal by the plaintiff, Mrs. Sidaway, from the dismissal by the Court of Appeal of her appeal from the judgment of Skinner J. given on 19 February 1982 whereby he dismissed her action for damages in respect of the personal injuries which she suffered as a result of a surgical operation performed upon her by a neuro-surgeon on 29 October 1974. The first defendants are the governing body of the Maudsley Hospital where she was treated and where she underwent the operation. The second defendants are the executors of Mr. Falconer, the distinguished neuro-surgeon who advised and performed the operation. Mr. Falconer died in August 1977, some five years before the trial of the action. Mrs. Sidaway does not allege negligence in the performance of the operation. Her case is that she was not informed of a risk inherent in the operation, that the risk materialised with the result that she suffered, and continues to suffer, serious personal injury, and that, had she been warned, she would not have consented to the operation. Damages are agreed at £67,500 subject to liability.
The case is plainly of great importance. It raises a question which has never before been considered by your Lordships' House. Has the patient a legal right to know, and is the doctor under a legal duty to disclose, the risks inherent in the treatment which the doctor recommends? If the law recognises the right and the obligation, is it a right to full disclosure or has the doctor a discretion as to the nature and extent of his disclosure? And, if the right be qualified, where does the law look for the criterion by which the court is to judge the extent of the disclosure required to satisfy the right? Does the law seek guidance in medical opinion or does it lay down a rule which doctors must follow, whatever may be the views of the profession? There is further a question of law as to the nature of the cause of action. Is it a cause of action in negligence, i.e. a breach of the duty of care, or is it based on a breach of a specific duty to inform the patient which arises not from any failure on the part of the doctor to exercise the due care and skill of his profession but directly from the patient's right to know?
Before attempting to answer these questions it is necessary to set out the facts of the case. At once a formidable difficulty arises. Mr. Falconer was dead before the trial. The judge was not prepared to accept Mrs. Sidaway's evidence that he gave no warning. The judge was, therefore, without any direct evidence as to the extent of the warning given. Further, the judge lacked evidence which Mr. Falconer alone could have given as to his assessment of his patient with especial reference to his view as to what would be the effect upon her of a warning of the existence of a risk, albeit slight, of serious personal injury arising from the operation however skilfully and competently it was performed. Such being the limitations upon the availability of critically important evidence, I confess that I find it surprising that the trial judge felt able to reach the detailed findings as to the extent of the warning given which are a striking feature of his judgement. There is, however, no appeal against his findings; and I have no doubt that your Lordships' House must proceed upon the basis of the facts as found. Nevertheless, the lack of knowledge of Mr. Falconer's assessment of his patient reduces to some extent the guidance which your Lordships can give for the assistance of judges in future cases. It also presents difficulties for the appellant.
Mrs. Sidaway was 71 years of age at the time of the trial in 1982. She was severely disabled by a partial paralysis resulting from her operation. The relationship of doctor and patient between Mr. Falconer and herself had been long-standing prior to the operation. In 1958 she had injured an elbow at work and as a result had suffered persistent pain. Treatment failed to relieve pain. In July 1960, she was referred to the Maudsley Hospital where Mr. Falconer discovered that the second and third cervical vertebrae were congenitally fused and that there was a significant narrowing of the spinal column between the fifth and sixth vertebrae. Mr. Falconer diagnosed the deformity in this area as the cause of her pain. He decided to operate. He removed the disc between the fifth and sixth vertebrae of the neck and fused the two vertebrae by a bone graft. Although pain persisted for another two years, it eventually disappeared. Mr. Falconer's diagnosis was proved correct and his operation ultimately succeeded in relieving his patient's pain.
Mr. Falconer annually reviewed his patient's progress between 1960 and 1970. In 1973, he wrote to Mrs. Sidaway asking how she was. She replied, complaining of very persistent pain "in the right arm and shoulder," which was the same area as before, and now also of pain in the left forearm. Mr. Falconer saw her in the early months of 1974. After some delays, she was admitted to hospital on 11 October 1974. Her pain in the meantime had got progressively worse.
On admission, Mrs. Sidaway was thoroughly examined by Dr. Goudarzi, a junior member of Mr. Falconer's team. On 17 October, she underwent a myelogram which revealed a partial block at the level of the C4/5 disc space, a posterior ridge in the same area which appeared to have, at least in part, a bony structure, and a narrowing of the subarachnoid space in the same area. Mr. Falconer diagnosed that pressure on a nerve root was the cause of her pain and decided to operate. The operation, which he performed on 29 October 1974, and its risks were, if I may respectfully say so, admirably and lucidly described by the trial judge, from whose judgment I take the following description:
"The operation consisted of a laminectomy of the fourth cervical vertebra and a facetectomy or foraminectomy of the disc space between the fourth and fifth cervical vertebrae. A laminectomy is an excision of the posterior arch of the vertebra. It gives the surgeon access to the foramen or channel through which nerves travel from the spine laterally. Randomly placed in the foramina, running alongside the nerves, are small blood vessels known as the radicular arteries. These supply blood to the cord and are extremely vulnerable because of (a) their size and (b) the unpredictable...
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