Causes of action

There are at least three, and possibly four, causes of action on which a person may rely in complaining of a doctor’s failure to provide adequate information concerning a medical procedure. The first is breach of contract; the second, trespass; and the third, negligence. A fourth possibility - breach of fiduciary duty - has been raised in England, but so far without success. This duty is supposed to arise from the special relationship which exists between doctor and patient, requiring the doctor to make full disclosure to the patient.

Breach of contract

The details of the contract between doctor and patient must generally take the surrounding circumstances and the nature of the particular relationship into account. However, it seems reasonably clear that there is an implied term in this contract that the doctor must use reasonable care and skill in treating the patient. In this context, treatment includes the provision of information to the patient to enable him or her to make an informed decision about the relevant medical procedure. Patients rarely sue doctors for breach of contract alone, although breach of contract is often pleaded as an alternative to negligence.¹ The main reason is that it seldom offers a benefit to the patient concerned over a claim in negligence. An action in contract may be more difficult to establish than one in negligence. In each action negligence must be proved, but in an action in contract the patient must also establish that there was a contract with the doctor.

Trespass

It is clear that if a doctor undertakes a medical procedure on a patient without the patient’s consent, the doctor is guilty of an assault (or more technically, a battery) on the patient.² An action in trespass may be brought in such a case.

For the purpose of an action in trespass, if the patient consented in broad terms to the relevant medical procedure, failure to provide information in relation to a risk inherent in the procedure is not normally regarded as denying the reality of the consent. As the Canadian Chief Justice, Mr Justice Laskin, said in a recent case:

In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent... [U]nless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.³

However, a South Australian case suggests that there may be some cases in which consent is lacking, even though the patient knows about the general nature of the procedure. In D v S,⁴ the patient had a breast reduction operation to diminish the size and weight of her breasts. The patient was concerned that the operation would cause scarring but the doctor assured her that scarring was unlikely and, if it occurred, would be superficial and would soon fade. On the basis of that statement, the patient agreed to the operation. In fact, the breasts were grossly and permanently scarred and the nipples were relocated unevenly. She suffered pain and lasting embarrassment. She was successful in her claim for damages for battery as well as negligence. The court held that her consent to the operation was not a true consent because the doctor had not told her about the procedure and risks of the operation.

Negligence

If a doctor treats a patient negligently and causes the patient injury, the patient has a right of action in negligence. The negligent act is usually found in the medical procedure. However, a failure to provide information to a patient about the procedure and the risks associated with it may also amount to negligence. Most actions alleging that doctors failed to inform patients sufficiently have, in fact, been brought in negligence.

The principal question in negligence is whether the doctor was in breach of the duty to exercise reasonable care and skill in the provision of professional advice and treatment. Courts in Australia, as well as in England and New Zealand, have said that a doctor’s general duty to act reasonably includes a duty to provide adequate information. The latter is not a separate duty.⁵ As Lord Diplock said in Sidaway’s case:

In English jurisprudence the doctor’s relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient’s health ... has hitherto been treated as single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment... This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment, advice (including warning of any risks of something going wrong however skilfully the treatment advised is carried out).⁶

Cox J made the same point in Gover v South Australia and Perriam:

The medical man’s duty ... extends to the whole of the professional relationship, including examination, diagnosis, treatment whether medical or surgical, and the need in an appropriate case to provide information to the patient.⁷

And in New Zealand, Mr Justice Woodhouse said in Smith v Auckland Hospital Board that providing balanced information and warnings about risks inherent in proposed treatment:

must involve the doctor in the same exercise of judgment founded upon the same medical experience and knowledge as he exercises in the field of technique. In this area of his responsibility, therefore, his duty of care should logically be measured by the same standards and upon the same principles.⁸

The contrary view - that a doctor’s duty to take reasonable care in relation to the provision of information is a separate or different duty from that in relation to diagnosis and treatment - has been adopted in a number of American decisions.⁹ In deciding whether a doctor has given a patient adequate information, some American courts have focused not simply on whether the doctor acted reasonably but, rather, on the patient’s right to self-determination - to make his or her own medical decisions and to be provided with sufficient information to give an ‘informed consent’.

This emphasis on the patient’s rights developed from a statement of Mr Justice Cardozo in Schloendorff v Society of New York Hospital¹⁰ that ’[e]very human being of adult years and sound mind has a right to determine what should be done with his own body’. On this basis, a patient should not be given medical tests or treatment without the patient’s informed consent. A patient has a right to be given information about the nature and implications of any proposed procedure, including material risks, complications and side-effects. Without that information, a patient is incapable of giving an informed consent. This in turn has led to the suggestion that, in relation to the giving of information to patients, a doctor’s duty to exercise reasonable care must be judged by a different, more patient-oriented standard than other aspects of a doctor’s conduct. As in England and Australia, a doctor’s conduct is judged by the standard of whether the doctor acted reasonably - that is, as a reasonable doctor would have done in the circumstances. The American doctrine of informed consent has not been adopted in England or Australia but it has had some influence on the development of the law in those jurisdictions.

Standard of care: reasonable care. In Australia, as in England, the standard of care required of a doctor in relation to information-giving is the same as that required in relation to diagnosis and treatment. It is the standard that is to be expected of an ‘ordinarily careful and competent practitioner of the class to which the practitioner belongs’.¹¹ This standard is analogous to that expected of any person who possesses special skills or competence. It is ‘the standard of the ordinary skilled man exercising and professing to have that special skill’.¹² The same standard applies to all professional people in an advisory position, such as lawyers and accountants.

Although English courts have adopted a negligence approach they have tended to place greater emphasis on the practice of the average doctor, or standard medical practice, as evidence of what is reasonable. At its most extreme, the decision whether a doctor was negligent in failing to provide adequate information would be judged almost entirely on the basis of expert testimony from other doctors, or other members of a particular specialty, on their practice in relation to the provision of information. If a responsible body of professional opinion is proved by such evidence, and the doctor acted according to that opinion, then the doctor was not negligent. This is summed up in the ‘Bolam test’:

The test [in determining the standard of care required of a doctor in advising and treating his patient] is the standard of the ordinary skilled man exercising and professing to have that special skill ... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.¹³

Later cases have shown a divergence of views. This is illustrated by the different approaches of Lord Diplock and Lord Bridge on the one hand, and Lord Scarman on the other, in Sidaway’s case. Lord Diplock said:

In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon’s shoes; it has to rely upon and evaluate expert evidence, remembering that it is no part of its task of evaluation to give effect to any preference it may have for one responsible body of professional opinion over another, provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion ... [T]o decide what risks the existence of which the patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way.¹⁴

Lord Bridge of Harwich expressed a similar view:

... a decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment. It would follow from this that the issue whether non-disclosure in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence.¹⁵

Statements such as these have sometimes been interpreted as leaving the determination of whether the doctor acted ‘reasonably’ entirely to the medical profession and to undervalue the right of the patient to be given information and to participate in making his or her own medical decisions. Recently, some judges have openly criticised that approach. Lord Scarman said in Sidaway:

The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment... The implications of this view of the law are disturbing. It leaves the determination of a legal duty to the judgment of doctors.¹⁶

A number of North American judges have made similar criticisms of the principle they see as underlying the English cases. In Reibl v Hughes, for example, Mr Justice Laskin said that he was not prepared:

to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty.¹⁷

Australian courts have emphasised that whether a doctor has acted reasonably in a given case cannot be determined solely by reference to what an average doctor, or an average specialist, would do in particular circumstances, nor to what is standard medical practice. It is for the court to decide, on the basis of all of the evidence before it, whether the doctor acted reasonably in the circumstances. As Mr Justice King said in F v R:

The ultimate question ... 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. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.¹⁸

The testimony of other doctors, or other specialists, as to their own practices, or standard medical practice, will obviously be substantial evidence in deciding what is reasonable, but it is not conclusive on the question whether the information was adequate. Whatever the general practice of medical practitioners, the court may find that a particular practice was unreasonable given the circumstances of the patient in question.

Risks that should reasonably be discussed. The risks that doctors should reasonably discuss with patients are those that are material. In Australia, England and most North American jurisdictions, matters are material if they ‘might influence the decisions of a reasonable person in the situation of the patient’.¹⁹ If the risk in question concerned harm or injury so slight, or so unlikely to occur, that no reasonable person would be influenced by it, then that risk need not be discussed. As Mr Justice Tadgell said in a Victorian case in 1988, a doctor is not negligent in not volunteering information that would not have influenced the given patient in deciding about, or consenting to, a recommended medical procedure, or would not have influenced an ordinary person in the patient’s position.²⁰

In some recent North American decisions, a different test of materiality has been suggested. Courts have suggested that the question is not whether a reasonable person in the patient’s position might have been influenced by the risks, but rather whether the particular patient might have been influenced by the risk if told about it. This would mean that in deciding the material risks that should be discussed with a patient, doctors must take into account the personal circumstances of the patient, some of which may not be known to them, but in relation to which they should have made inquiries. This involves the notion of ‘constructive knowledge’ embodied in the statement of the Supreme Court of Canada in Reibl v Hughes that:

what the doctor knows or should know that the particular patient deems relevant to a decision whether to undergo prescribed treatment goes equally to [the doctor’s] duty of disclosure as do the material risks recognised as a matter of required medical knowledge [emphasis added].²¹

For example, if a patient’s superannuation benefits will vest in 18 months time, that may affect the decision of that patient whether to have a non-essential operation or to defer it. The relevance of such personal matters in determining which risks are ‘material’ in a particular case requires evidence, not only from members of the medical profession on their general information-giving practices, but also from the patient and his or her family about matters of particular concern to the patient.

In Reibl v Hughes, the patient had carotid artery disease. The doctor recommended an operation to reduce the risk of the patient suffering a stroke some time in the future. The operation was not expected to cure the patient’s headaches, which were the reason for his consulting the doctor, but the patient did not appreciate this. The operation also carried a 10% risk of causing a stroke, a risk which was not disclosed to the patient. The patient was entitled to pension benefits if he worked for another 18 months. The patient suffered a stroke after undergoing the operation. The Supreme Court of Canada found that this risk should have been disclosed as it would, in all the circumstances, including the patient’s financial circumstances, probably have influenced the particular patient to refuse the operation.

Most North American courts have refused to go as far as the Supreme Court of Canada in Reibl v Hughes. Although they have focused on the patient’s right to be given information, the materiality of the risks has been determined objectively, by reference to the standard of what a reasonable patient would have considered significant, rather than subjectively, by reference to the concerns of the particular patient. They have said that the latter approach would impose an unrealistically high obligation on doctors, requiring them to second-guess the patient and may leave the doctor at the mercy of a patient’s hindsight. North American courts have, almost without exception, rejected the particular patient test.

Relevant factors in determining reasonable risks. In all jurisdictions, the question whether a particular risk is material must be determined in each case as a matter of fact in all the circumstances. The factors that may be relevant in deciding whether a particular risk is material include the following (which obviously overlap):

• the personality and temperament of the patient and the patient’s attitude.²² As Mr Justice Cox said in Gover v State of South Australia and Perriam: ‘[A doctor] is obliged to act reasonably in the circumstances, and the circumstances will include a fair appraisal of [the] patient’s intelligence and temperament and apparent understanding, made in the light of the simplicity or complexity of the recommendation [the doctor] is making.’²³
• whether the patient wants information. If a patient is apparently keen to be given more information, rather than seeking reassurance, more information should generally be given. If, on the other hand, the patient does not want information, the doctor is obviously not required to force it upon the patient: ‘Many people are prepared to place themselves in the hands of their doctors and to leave all decisions to them’.²⁴ The patient can be said to be exercising autonomy by requesting not to be given information and by accepting the decision of the doctor. However, doctors are nevertheless still required to give patients basic information and, in some cases, they may have difficulty in deciding how much to tell a patient who does not want fuller information. For example, if the choice for the patient is between a lumpectomy and a mastectomy, how much information should the doctor give about the two operations if the patient says ‘I’ll leave it to you Doctor’? In deciding whether the patient wants information, as in other matters, the doctor must exercise reasonable care and judgment.²⁵
• whether the patient asks questions. North American courts have said that a doctor’s duty to give information is not altered by the patient asking questions. A doctor is an expert and should therefore be required to give all the relevant information whether it is specifically requested or not. Many patients may be unable to identify the relevant questions to ask and ‘a rule which presumes a degree of sophistication which many members of society lack is likely to breed gross inequities’.²⁶ In addition to not knowing the relevant questions to ask, patients may not wish to show their ignorance or they may be too ill or overawed by their situation to ask questions. In Australia and England, however, courts have said that more information should be given if patients ask questions. The patient’s questions indicate to the doctor additional information that is ‘material’ for that patient in deciding whether to undertake the recommended procedure and ‘A direct question would have called for an answer telling of the risk, however slight’.²⁷
• the patient’s level of understanding. A doctor need not ‘cross-examine his patient exhaustively to ensure that she both understands and will remember his advice’ but should give information that the doctor thinks that the patient will understand after ‘a fair appraisal of his patient’s intelligence and temperament and apparent understanding, made in the light of the simplicity or complexity of the recommendation he is making’.²⁸
• the nature of the treatment. More drastic treatment (such as major surgery) requires more information.²⁹ If the treatment is necessary to preserve the patient’s life or health, however, it may require less explanation than less urgent treatment, even if it is relatively serious. Thus, in the South Australian case Gover v State of South Australia and Perriam,³⁰ a patient undertook eye surgery, principally for cosmetic reasons, to reduce her ‘baggy’ eyelids. One factor that was held to be relevant in deciding what information she should have been given was that eye drops or ointment were alternative treatments so far as the medical condition of the eye was concerned. The ‘bagginess’ of her eyelids was not unduly gross and if she had known that her medical condition could be treated non-surgically, that might have influenced her decision whether to agree to surgery. Similarly, in the Canadian case Haughian v Paine,³¹ a patient agreed to a laminectomy and discotomy recommended by his surgeon to relieve pain and disability in his right arm. This operation was not immediately necessary and an alternative, at least for the time being, was ‘conservative management’ - supervised rest, traction, muscle therapy and analgesic medication. The court held that as the operation was not essential to preserve the patient’s life or health, he should have been given this information and allowed to decide for himself.
• the magnitude of the possible harm. There is a greater duty to provide information about the possibility of serious harm even if the chance of it occurring is slight.³² A doctor should discuss a risk of death, stroke, paralysis, blindness or other serious complication with a patient even if there is only a slight chance of the risk eventuating. Thus, in the eye surgery case referred to above, the court said that the risk that the operation might cause blindness should have been mentioned to the patient: the risk of blindness was very small indeed, but the magnitude of such a complication meant that the decision should properly have been left to the patient herself.³³ Similarly, Mr Justice Zelling said in another case in which the patient suffered eye damage as a result of a drug to treat severe mental illness: ‘In my view, no doctor is entitled to give a patient treatment which may blind or seriously damage her eyesight without first discussing it with the patient and obtaining her consent to the treatment’.³⁴ However, if the chance of the risk eventuating is so slight that no reasonable person would be influenced by it, the risk need not be mentioned to the patient.
• the likelihood of the risk. There is a greater obligation to discuss risks that are more likely to occur than those that are rare. This applies even if the harm is relatively slight. However, it is probably not generally necessary for a doctor to discuss with a patient risks that are inherent in any operation, such as the general risks of anaesthesia or infection after surgery, because patients are assumed to know these risks or to consider them too remote to be significant.³⁵
• the general surrounding circumstances. The extent of the duty to give information may be affected by emergency conditions, or the absence of the opportunity for detached reflection or calm counselling, and the existence of alternative sources of advice.³⁶ A doctor may proceed to treat a patient without giving information or obtaining consent if it is an emergency.³⁷ The courts have not defined what constitutes an emergency, in particular whether it must be threatening to the patient’s life or whether it is sufficient that there is a risk of grave physical or mental injury to the patient, or both.³⁸ In practice, doctors often face difficult decisions in situations which might not be life threatening. In judging the doctor’s conduct in such circumstances, the principal question will be whether the doctor’s actions accorded with what a reasonable doctor would have done in similar circumstances.
• the doctor’s belief on reasonable grounds that the patient’s health or welfare might be seriously harmed by being given the information. If a patient is of a nervous or anxious disposition, a doctor may justifiably withhold or, in particular, refrain from volunteering, information ‘when he judges on reasonable grounds that the patient’s health, physical or mental, might be seriously harmed by the information’,³⁹ or if the doctor ‘reasonably judges that a patient’s temperament or emotional state is such that he would be unable to make the information a basis for a rational decision’.⁴⁰ The reference to ‘reasonableness’ indicates that the doctor’s belief about the risk to the patient’s health is judged objectively. It is not sufficient that the particular doctor believed that the patient’s health was at risk. The case must be such that a reasonable doctor would have held that belief.

Doctors have some discretion to withhold information on such grounds even if a patient asks questions. Chief Justice King said in F v R, that even if a patient directly requests information, a doctor’s duty to act in the patient’s best interests ‘may justify or even require an evasive or less than fully candid answer even to a direct request’,⁴¹ especially if the question arises from a desire for reassurance rather than information. However, the extent to which doctors may justifiably withhold information which they believe might harm the patient’s welfare is strictly limited.⁴² Chief Justice King stressed that a doctor should not lightly decide that a patient should not be fully informed. ‘The governing consideration is the right of every human being to make the decisions which affect his own life and welfare and to determine the risks which he is willing to undertake’.⁴³ If a doctor withholds information from a patient on the ground that that was necessary in the patient’s best interests, the doctor must have reasonable grounds for that belief.

Causation. A patient can recover damages for negligence only if it is proved that the injury was in fact caused by the doctor’s negligence. In the case of a failure to provide relevant information, the plaintiff must prove that, if properly informed of the treatment’s implications or its associated risks, he or she would not have taken the treatment which caused the injury and that a risk that should have been disclosed in fact caused the injury. The last two matters are questions of causation. Even if the doctor is found to have been negligent in failing to provide adequate information, the patient may fail on the ground that the doctor’s negligence did not cause the relevant injury.

In Australia, the question whether the doctor was negligent is determined by reference to an objective test. The question is whether the doctor acted reasonably in the circumstances, and whether the risk in question would have been material to a reasonable person in the patient’s position. If the doctor is found to have been negligent, the next issue - whether that negligence caused the patient’s injuries - is decided by a subjective test.⁴⁴ That is, the decision whether the patient would have refused treatment if told of the risk in question is based on evidence about the patient, the patient’s treatment, circumstances, and expressed views, rather than on a consideration of a reasonable person in the patient’s position.

This issue has rarely been the subject of a judicial decision in Australia as plaintiffs have almost invariably failed at the preliminary hurdle of proving that the doctor acted in breach of the doctor’s duty of care to the plaintiff. In North America, on the other hand, the standard for the provision of information is generally more subjective, but the test for causation is objective; it is determined by reference to the reasonable, and not the particular, patient.⁴⁵ In practice, therefore, the result may not be greatly different.

The interaction of the standard of information-giving and the test of causation may be illustrated by a recent Victorian case involving a failed tubal ligation. Mr Justice Tadgell said that the defendant gynaecologist had not acted unreasonably in not advising the patient and her husband of the ‘infinitesimal or slight prospect of the failure of a tubal ligation’ since that advice would not have influenced ‘ordinary persons in their position’.⁴⁶ In reaching that conclusion, the judge took into account the following matters:

• the plaintiff later underwent a similar operation on her fallopian tubes (a laparoscopic tubal ligation) which carries a similar risk of failure, and neither she nor her husband used other contraceptive methods after the operation;
• the plaintiff had the second operation despite the fact that she said in relation to the first operation that she would not have undergone it, with full anaesthetic, if there was any chance of failure, however slight.

Had the judge found that the doctor did not act reasonably because the risks were material and should have been discussed, these matters would have been equally relevant to the causation question: would the plaintiff (or, on an objective test, a reasonable person in the plaintiff s position) have undertaken the procedure if informed of the risk of recanalisation?

As the common law develops, judges who believe that doctors should give more information to their patients may be more inclined to find that the doctor did not act reasonably and should have given more information. Even so, plaintiffs may fail on the causation question.

Conclusion

There has clearly been some difference in emphasis between the case law in England, Australia and North America. The English and Australian cases have adopted a negligence approach. The issue is whether the doctor acted reasonably in providing information to the patient. One question is whether the doctor did as other doctors would have done in similar circumstances. Another is whether the risk was material, that is, whether it would have influenced a reasonable person in the position of the patient in deciding whether to undertake the procedure in question. But the overriding question is whether the doctor acted reasonably in all the circumstances, which is a question for the court to decide on the basis of all the evidence. If the doctor is found not to have acted reasonably - to have been negligent - the patient must then prove causation. This means that the patient would not have undertaken the procedure if he or she had been informed of that risk, and the risk that should have been discussed in fact caused the patient’s injury. Since most patients have in practice not been able to prove that the doctor was negligent, courts have rarely had to consider questions of causation. It appears, however, that the test for determining causation is subjective - would the particular plaintiff have been influenced by knowing that risk?

In North America, on the other hand, the initial inquiry is more subjective; it focuses on the patient’s right to information, rather than on whether the doctor acted reasonably. Expert evidence of standard medical practice is therefore much less important. But if the patient is able to establish that he or she was not given information to which he or she was entitled, the question whether that would have influenced the patient not to have the procedure is determined by considering whether the information that should have been given would have had that effect on a reasonable person.

1. The Medical Defence Association of Victoria has advised of many allegations of breach of contract in cases that have not reached the courts.

2. A surgical operation or other medical procedure involving the direct touching of a patient, if performed without the patient’s consent, constitutes a trespass. In exceptional circumstances, such as where the patient is unconscious and immediate treatment is required to prevent, or minimise, the risk of grave physical and/or mental harm to the patient, a doctor may be justified in proceeding without the patient’s consent. In normal circumstances, however, the doctor must obtain the patient’s consent or risk liability in trespass.

3. Reibl v Hughes (1980) 114 DLR (3d) 1, 10-11.

4. (1981) 93 LS (SA) JS 405.

5. Although the Federal Court of Australia held in Golski v Kirk (1987) 14 FCR 143, that a doctor’s breach of the duty to take care in warning or advising on medical treatment gives rise to a separate cause of action from that arising from a breach of the duty to take care in relation to treatment, that does not mean that they are separate duties. The reason why the different breaches may lead to separate causes of action is not because they arise from breaches of different duties, but because they are separated in time and, if proved, may give rise to significantly separate and additional awards of damages. A patient who is able to prove that he or she would not have undertaken the operation recommended by the doctor if properly informed of the risks is entitled to compensation on that ground as well as the compensation which would be awarded for negligent performance of the operation itself.

6. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Mandsky Hospital and others [1985] 1 AC 871, 893.

7. (1985) 39 SASR 543, 551.

8. [1964] NZLR 241, 247: later appealed [ 1965] NZLR 191.

9. There is legislation in about half of the American States on ‘informed consent’. For the most part, it is intended to protect doctors who give reasonable information to patients, rather than to require that patients be given detailed information. What follows is based on case law in those States that do not have such legislation.

10. (1914) 211 NY 125; 105 NE 92, 93.

11. F v R (1983) 33 SASR 189,190 (King CJ).

12. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, 121 (McNair J); confirmed and applied in Gold v Haringey Health Authority [1987] 2 All ER 888, 893-4 (Lloyd LJ), 896 (Stephen Brown LJ).

13. Bolam v Friern Hospital Management Committee, n 12, 586 (McNair J).

14. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others n 6, 895 (emphasis added).

15. n 14, 900.

16. n 14, 881-2.

17. n 3, 13.

18. n 11, 194.

19. F v R, n 11, 192 (King CJ) (emphasis added).

20. Petrunic v Barnes, (1988) Australian Torts Reports, 80-147.

21. n 3, 12.

22. F v R, n 11, (Bollen J).

23. n 7, 558.

24. F v R, n 11, 193 (King CJ).

25. F v R, n 11, 192 (King CJ).

26. Canterbury v Spence, (1972) 464 F 2d 772, 783, n 36.

27. F v R, n 11, 207 (Bollen J).

28. Gover v State of South Australia and Perriam, n 7, 558 (Cox J).

29. F v R, n 1 1, 192 (King CJ).

30. n 7.

31. (1987) 40 CCLT 13.

32. F v R, n 11, 192 (King CJ); Battersby v Tottman and State of South Australia (1985) 37 SASR 524, 542 (Jacobs J).

33. Gover v State of South Australia and Perriam, n 7, 563. In fact,the possibility of blindness was not then generally recognised as a risk of the eye operation in question, so the surgeon was found not to have been negligent in not discussing it with the patient.

34. Battersby v Tottman, n 32, 534.

35. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, n 6, 897 (Lord Bridge of Harwich).

36. F v R, n 11, 193 (King CJ).

37. F v R, n, 11, 193 (King CJ).

38. The Consent to Medical and Dental Procedures Act 1985 (SA) enables emergency medical procedures to be carried out on persons unable to consent if the doctor ‘is of the opinion that the procedure is necessary to meet imminent risk to the person’s life or health’: section 7(2)(b)(i).

39. F v R, n 11, 193 (King CJ) (emphasis added); Battersby v Tottman and State of South Australia, n 32, 527 (King CJ).

40. F v R, n 11, 193 (King CJ) (emphasis added).

41. n 11, 192.

42. Lord Denning’s endorsement (Hatcher v Black, The Times, 2 July 1954) of a doctor’s right even to lie to a patient in response to a direct question, when the doctor believed that to be in the patient’s best interests, has been modified by Sidaway (n 6). Similarly, it was held in New Zealand, in Smith v Auckland Hospital Board ([1965] NZLR 191, 198) that if a patient asks about the risks of an operation, those questions should be answered carefully (although not necessarily truthfully), subject to the doctor’s assessment of the likely effect of the information on the patient’s health.

43. F v R, n 11, 192-3.

44. English courts have also applied a subjective test in determining causation in informed consent cases: Chatterton v Gerson [1981] 1 QB 432; Hills v Potter [1983] 3 All ER 716 (QB).

45. See, for example, Canterbury v Spence, n 26, 791: ‘What a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance’. In Reibl v Hughes, n 3, the Supreme Court of Canada also rejected the subjective test of causation. It would be too favourable to plaintiffs who would always have the benefit of hindsight and would claim that their decision would have been different if they had been properly informed of the risks.

46. Petrunic v Barnes, n 20, 67, 329.