England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 97/0068/2

(HIS HONOUR JUDGE BURSELL QC )

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday 20 May 1998

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE ROCH

LORD JUSTICE MUMMERY

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TINA MARIE PEARCE

KEVIN DOUGLAS PEARCE

Plaintiffs/Appellants

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UNITED BRISTOL HEALTHCARE NHS TRUST

Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR D RICHARDSON (Acting pro bono for the appellant in person).

MISS S EDWARDS (Instructed by Messrs Osborne Clark, Bristol, BS1 4HE) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

JUDGMENT

LORD WOOLF, MR: This is an appeal from a judgment of His Honour Judge Bursell QC, sitting at the Law Courts in Bristol, of 26 November 1996. He dismissed a claim for negligence brought by Mr and Mrs Pearce in respect of the stillborn birth, on 4 December 1991, of a daughter to whom they gave the name Jacqueline. This event was obviously extremely distressing to Mr and Mrs Pearce, and they feel strongly that it is a matter which they should, and properly can, pursue before the courts.

Mr and Mrs Pearce had the benefit of legal representation before the judge. They would not have had legal representation before this court but for the pro bono scheme which enables persons in their position, in appropriate cases, to have the benefit of counsel. Mr Richardson has appeared on behalf of Mr and Mrs Pearce. At the outset of this judgment I would like to express my acknowledgement of the assistance which he has provided not only to Mr and Mrs Pearce but also to this court. Without that assistance, it would have been much more difficult for the court to deal satisfactorily with the issues which arise on this appeal. Those issues are not precisely the same as those which were before the judge when he considered the matter in the sense that, since his judgment, the issues have been considerably narrowed. The nature of the appellant's complaints before this court were only clearly revealed at the beginning of this year when another member of the Bar, Miss Barbara Hewson, set them out in a skeleton argument.

Mr Richardson contended that this appeal raised a point of some general importance as to a doctor's duty to a patient where there is a conflict between the doctor's desire to treat the patient conservatively, that is by allowing nature to take its course, and the patient's express desire for intervention by taking some form of operative treatment. In such a situation, what is the doctor required to tell the patient?

Mr Richardson draws attention to the fact that this is the converse of the position which regularly comes before the courts where the doctor has treated the patient because the doctor considers that treatment is appropriate, and the patient, when the treatment does not have the beneficial effect expected, complains that he or she was not informed of the risks which were inherent in the treatment. Mr Richardson submits that the issues which he identifies involves the right of a patient to determine his or her own future, and the right of a patient to have a second opinion.

Mr Richardson correctly submits that it is clear that if a patient asks a doctor about the risk, then the doctor is required to give an honest answer. He submits that if it is a case where it is clear that the patient wants to know, but has not actually expressed a request to know, then the doctor is under a similar obligation.

The findings of the judge have reduced the scale of the dispute, therefore I can set out the background facts shortly. Mrs Pearce is already the mother of five children. Jacqueline would have been her sixth child. Since the events to which I am about to refer, she has given birth successfully to another child, so she has a family of six children. So far as Jacqueline was concerned, the estimated date of her delivery (the full term baby) was 13 November 1991. On 27 November of that year, Mrs Pearce saw Mr Niven, the consultant responsible for her care at the respondent hospital, the United Bristol Healthcare National Health Service Trust. At that time, she was fourteen days beyond term. She was very concerned, crying and begged "to come in and be induced or have a caesarean section". The judge found that to be the position on that day. Having examined Mrs Pearce, Mr Niven took the view that the appropriate course was for her to proceed to have a normal birth without any form of medical intervention.

Mr Niven assured her that everything was fine. According to Mrs Pearce, "He explained the risk to me of the baby being induced. He also discussed a caesarean section. He advised doing it naturally would be preferable and that the recovery from a caesarean section would be likely to be much slower". She said, "I was upset but accepted his advice". She agrees that she was told by Mr Niven that it would be very risky to induce the birth.

So far as the advice which Mr Niven gave about inducing the birth is concerned, the medical evidence before the judge was overwhelming that it would indeed be risky to induce the birth. Mr and Mrs Pearce made clear that they would not want to take a course which endangered the baby. Because of that, the question of the baby being induced at that stage falls out of consideration.

At some stage during that interview the judge found that Mr Niven said something which Mrs Pearce understandably found distressing. It was to the effect that she should not behave like a child. In the event she went away from the meeting and was prepared to follow Mr Niven's advice. From the pathologist's evidence which was given before the judge, which is not controverted on this appeal, it has to be accepted that Jacqueline died sometime between 7.30 pm on 2 December and 7.30 pm on 3 December. The judge thought that it was probable that she died prior to the morning of 3 December. Mrs Pearce was admitted into hospital to have the baby on 4 December. It was found that the baby was not viable when she arrived, as a result of which the birth was induced and the baby was born on 4 December.

In those circumstances this case can be reduced to raising the following issues before this court:

1. Should Mr Niven have advised Mrs Pearce of any increased risk of the baby being stillborn as a result of the passage of time subsequent to 27 November?

2. If Mr Niven should have so advised, would the advice which he had given have altered the decision of Mrs Pearce to allow time to pass so that the child could be born naturally, or certainly on 4 December?

So far as 27 November is concerned, it is clear that the advice which was given as to what should be the policy to adopt in relation to the birth, was followed reluctantly by Mrs Pearce. It is clear that Mrs Pearce would have preferred an induction on 27 November, if that had not been risky for the child. If that was not possible, she would have preferred a caesarean section to be carried out.

As to the caesarean section, the only disadvantage which would arise from that form of treatment was that it would only have delayed Mrs Pearce's recovery, in addition to the normal consequences of any operation of the scale of a caesarean section, which always entails some degree of risk. Mr Richardson submits that the doctors were not saying that a caesarean was not a possible option on 27 November. They are saying that, in their judgment, that was not the appropriate option. Mr Richardson submits that it is clear on the evidence that if Mrs Pearce had thought she was going to subject the child she was carrying to a risk, she would have insisted on a caesarean.

In support of that view, Mr Richardson refers to a passage in the transcript, where Mrs Pearce was being cross-examined in the court below, in these terms:

"Q. You've already told us that quite naturally you would have done and wanted to do what was thought best for the baby.

A. Yes.

Q. So if Mr Niven had told you, as he did, ´There's a real risk if you go ahead with induction now, but there is a minuscule risk of a still birth happening on 27 November, you would have taken the course which posed the least amount of risk, ie to wait?

A. No.

Q. Mrs Pearce, what I'm suggesting is that as a sensible caring mother you would have taken the course that you were advised would be the least risky to your baby?

A. No, because he could have given me a caesarean and there wouldn't have been no risk."

Mr Richardson submits that the last answer indicates what Mrs Pearce was saying in evidence, that she would have decided upon the option of the caesarean because that would have involved no additional risk, whereas the delay could have.

Mr Richardson also submits that, when looking at the question of the advice which a doctor is required to give a patient for whom he is responsible, the courts are not confined, in reviewing the adequacy of that advice, to follow the test laid down in the well-known case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. In other words, the courts are not confined to see whether or not the treatment is in accord with an acceptable body of medical opinion and in concluding that if it is there is no liability on the doctor concerned. He submits that the decision of a doctor in relation to the giving of advice can be examined against the background of at least three questions:

1. Is the advice rational having regard to the context and purpose for which it is required?

2. Is the advice responsible in that it alerts the patient to the particular risk of which the patient should know?

3. Is the advice responsive in that it deals with the questions and concerns of the particular patient?

Mr Richardson also submits that if the doctor is not prepared to explain the risks associated with non-intervention to a patient who is concerned, it is his duty to refer the patient to another doctor for a second opinion. Furthermore, he submits that it is only where a patient consents to non-intervention after a proper explanation that that patient can be deprived of his or her entitlement to a second opinion.

So far as the authorities are concerned, in my judgment, Mr Richardson rightly goes to the well-known case of Sidaway v Governor of the Bethlem Royal Hospital [1985] 1 AC 871. That case dealt with a situation where the complaint was more conventional; where the risks of operative treatment had not been explained to the patient. Although all the members of the House of Lords were of the view that the plaintiff was not entitled to succeed, the reasons which they gave for this differed. The first speech was given by Lord Scarman. It is a closely reasoned speech which deals comprehensively with that issues that arise in this situation. The views he expresses are a minority view and do not in this jurisdiction represent the law, although they do reflect the law in the United States and, to some extent, in Canada. They also reflect the developments which have taken place in the law since that decision was given in Australia.

The views of the majority most clearly appear from the speech of Lord Bridge of Harwich, with which Lord Keith of Kinkel agreed. However Lord Diplock also gave a speech which adopted the same approach as that of Lord Bridge. That approach involved applying the Bolam test to the giving, or failure to give, advice. There is one passage in Lord Diplock's speech at page 895B to which it is desirable to refer. It reads:

"But when it comes to warning about risks, the kind of training and experience that a judge will have undergone at the Bar makes it natural for him to say (correctly) it is my right to decide whether any particular thing is done to my body, and I want to be fully informed of any risks there may be involved of which I am not already aware from my general knowledge as a highly educated man of experience, so that I may form my own judgment as to whether to refuse the advised treatment or not.

No doubt if the patient in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know; but we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient's physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a 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. The Bolam test should be applied."

The passage at 900C in the speech of Lord Bridge is particularly apposite and reads:

"I fully appreciate the force of this reasoning, but can only accept it subject to the important qualification that 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, applying the Bolam test. But I do not see that this approach involves the necessity ´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.´ Of course, if there is a conflict of evidence as to whether a responsible body of medical opinion approves of non-disclosure in a particular case, the judge will have to resolve that conflict. But even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of 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. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the ten per cent risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes 114 DLR (3d) 1. In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient's right of decision, could hardly fail to appreciate the necessity for an appropriate warning."

Lord Templeman did not adopt quite the same approach as either Lord Scarman or the majority, but his speech is particularly relied upon by Mr Richardson. I bear that in mind, but I would merely refer to one short passage at page 904:

"If the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject that advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment. A patient may make an unbalanced judgment because he is deprived of adequate information. A patient may also make an unbalanced judgment if he is provided with too much information and is made aware of possibilities which he is not capable of assessing because of his lack of medical training, his prejudices or his personality."

While recognising that Lord Templeman's approach is not precisely that of the majority, it seems to me that that statement of Lord Templeman does reflect the law and does not involve taking a different view from the majority.

In addition to the Sidaway case, Mr Richardson relies on a speech of Lord Browne-Wilkinson in the more recent case of Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151. In his speech at 1160B he said:

"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure or risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the 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.

I emphasise that, in my view, it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence."

In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment 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 he or he should adopt.

In the Sidaway case Lord Bridge recognises that position. He refers to a "significant risk" as being a risk of something in the region of 10 per cent. When one refers to a "significant risk" it is not possible to talk in precise percentages, but I note, and it may be purely coincidental, that one of the expert doctors who gave evidence before the judge gave the following answer in evidence. I refer to the evidence of Mr Pearson:

"A. If she hadn't asked I wouldn't have mentioned the subject as she was already distressed and the risk is excessively small. I generally practice according to the belief that it is not the doctor's duty to warn of very small risks. If the risk, however, was of the order of 10%, for instance, then of course it would be my duty to warn against such a level of risk."

Obviously the doctor, in determining what to tell a patient, has to take into account all the relevant considerations, which include the ability of the patient to comprehend what he has to say to him or her and the state of the patient at the particular time, both from the physical point of view and an emotional point of view. There can often be situations where a course different from the normal has to be employed. However, where there is what can realistically be called a "significant risk", then, in the ordinary event, as I all have already indicated, the patient is entitled to be informed of that risk.

Turning to the facts of this case, the next question is, therefore, "Was there a significant risk? To what extent was the risk of Jacqueline being a stillborn child increased by delay?" Miss Edwards, on behalf of the respondent, has referred us to the relevant passages in the transcript. They show that, on any basis, the increased risk of the still birth of Jacqueline, as a result of additional delay, was very small indeed. The statistical material which was available can be broken down in to different classes. Even looked at comprehensively it comes to something like 0.1 to 0.2 per cent. The doctors called on behalf of the defendants did not regard that risk as significant, nor do I. Indeed, it is right to point out that the operative treatment involved in a caesarean section would inevitably have had some risk.

Miss Edwards also pointed out, rightly, that earlier during the pregnancy the risk of the child being stillborn would have been greater than the figures with which we are concerned after 13 November and 27 November 1991 in this case. Particularly when one bears in mind Mrs Pearce's distressed condition, one cannot criticise Mr Niven's decision not to inform Mrs Pearce of that very, very small additional risk. Mr Niven would know that the baby was not large, which would also mean that the risk would be reduced. This is a case where, in my judgment, it would not be proper for the courts to interfere with the clinical opinion of the expert medical man responsible for treating Mrs Pearce.

As to what would have been the consequence if she had been told of this particularly small risk, it is difficult to envisage. The judge made no clear finding as to this, but my conclusion is that, in so far as it was possible for this court to make an assessment of this, the inference is that if Mrs Pearce had been able to understand what she had been told about the increased risk, her decision would still have been to follow, reluctantly, the advice of the doctor who was treating her, namely Mr Niven.

In those circumstances it seems to me that, although one has sympathy for Mr and Mrs Pearce, the only possible result of this appeal is that the appeal should be dismissed.

LORD JUSTICE ROCH: I agree.

LORD JUSTICE MUMMERY: I also agree.

Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.