Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1

A patient suffered paralysis following a spinal operation. She sued for negligence, arguing the surgeon failed to warn her of this small risk. The House of Lords held the surgeon was not negligent, applying the 'Bolam test' to risk disclosure.

Facts

The appellant, Mrs Amy Sidaway, suffered from persistent pain in her neck, right shoulder, and arms. She was referred to Mr Falconer, a senior neurosurgeon at Bethlem Royal Hospital. He diagnosed a problem with her cervical spine and recommended a laminectomy operation. The operation carried a small inherent risk of damage to the spinal cord, estimated at less than 1%. Mr Falconer did not specifically inform Mrs Sidaway about this particular risk of paraplegia. The operation was performed skilfully but, tragically, the risk materialised, leaving Mrs Sidaway severely disabled. She brought an action in negligence against the hospital and the surgeon’s estate, alleging a breach of the duty of care by failing to warn her of the risk.

Issues

The central legal issue was to determine the standard of care required of a doctor when advising a patient about the risks of a proposed treatment. Specifically, the House of Lords had to decide:

1. Whether the doctrine of ‘informed consent’, as developed in North America (requiring disclosure of all material risks a ‘prudent patient’ would want to know), should be adopted into English law.
2. Alternatively, whether the existing ‘Bolam test’ should apply. This test holds that a doctor is not negligent if they have acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art.

Judgment

The House of Lords, by a 4-1 majority, dismissed the appeal, holding that the ‘Bolam test’ was the appropriate standard to be applied to a doctor’s duty to disclose risks. The majority explicitly rejected the importation of the US doctrine of ‘informed consent’.

Lord Diplock

Lord Diplock applied the Bolam test unequivocally to all aspects of a doctor’s duty, including advice, diagnosis, and treatment. He saw no grounds for distinguishing between them and stated that the standard should be judged by reference to professional medical opinion.

To decide what risks the patient should be told of and in what terms they should be told of them is as much an exercise of professional skill and judgment as any other part of the doctor’s task of advising and treating the patient.

Lord Bridge of Harwich

Lord Bridge, while agreeing with the majority, introduced a significant qualification to the Bolam test. He suggested that while the standard is generally medical practice, a judge could find a doctor negligent for non-disclosure in certain circumstances, even if supported by a body of professional opinion. This would apply where the risk was particularly severe.

…the judge might in certain circumstances come to the conclusion that the 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.

Lord Templeman

Lord Templeman also supported the application of the Bolam test, expressing concern that a patient-centred test would lead to defensive medicine and an increase in litigation. He held that since Mr Falconer’s conduct was approved by a responsible body of medical opinion, there was no negligence.

The doctor is not liable if he conforms with a practice accepted as proper by a responsible body of medical opinion. In the present case the judge found that a responsible body of medical opinion would have approved the non-disclosure by Mr. Falconer of the risk of damage to the spinal cord.

Lord Scarman (dissenting in part)

Lord Scarman provided a powerful dissenting opinion. He argued for a move away from medical paternalism towards greater patient autonomy. He proposed that the standard should not be set by the medical profession but by the law, based on a ‘prudent patient’ test. He argued that a doctor has a duty to warn of any ‘material risk’, which is a risk a reasonable patient in the claimant’s position would likely regard as significant. He concluded that the 1-2% risk of paraplegia was a material risk that should have been disclosed.

In my view the question whether or not the omission to warn constitutes a breach of the doctor’s duty of care is to be determined by the ‘prudent patient’ test which I have formulated.

Implications

The decision in Sidaway entrenched the Bolam test as the governing principle for medical consent in English law for several decades, affirming a doctor-led standard over a patient-centred one. It established that what a patient should be told was a matter of professional medical judgment. However, the qualification provided by Lord Bridge and the dissent of Lord Scarman laid the intellectual groundwork for a future shift in the law. This shift culminated in the landmark Supreme Court decision of Montgomery v Lanarkshire Health Board [2015], which effectively overruled Sidaway and established a new patient-focused test for informed consent, much closer to the position advocated by Lord Scarman.

Verdict: The appeal was dismissed.

Source: Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1