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Doctor's Duty to Answer Patients' Inquiries
932
Medicine and the Law
Obituary
Doctor’s Duty to Answer Patients’ Inquiries THE plaintiff sued Bloomsbury Health Authority claiming that staff
University College Hospital, London, had given her negligent advice or information about the contraceptive drug ’Depo-Provera’, which had then been injected following immunisation against rubella. She alleged that she had been insufficiently informed about possible side-effects; that had she been better informed she would not have agreed to the injection; and that she had suffered side-effects due to depo-provera. In May, 1985, Leonard ‘ rejected most of the allegations about side-effects but found the hospital staff negligent in respect of information given, and awarded the plaintiff C3600 (Lancet 1985; i: 1517). The health authority appealed, successfully, claiming that the judge had applied the wrong test when deciding the extent of a doctor’s duty of reply to questions from a patient. In the Sidaway case (Lancet 1985; i: 528) the issue had been whether the absence of any warning of a very small degree of serious risk inherent in an operation or treatment was negligent. The House of Lords had decided by a majority that the test to be applied was generally that laid down in Bolam (1957)-namely, had the doctor acted in accordance with the practice accepted as proper by a body of responsible and skilled medical opinion? However, Lord Diplock had mentioned the natural tendency of many people to want to
ROBERT GWYN MACFARLANE CBE, MD Lond, FRCP, FRS
at
decide for themselves whether or not to consent to treatment and he remarked "No doubt if the plaintiff in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know". Lord Bridge, with whom Lord Keith agreed, said that when questioned specifically by a patient about the risks of a particular treatment, the doctor had a duty "to answer both truthfully and as fully as the questioner requires". In Blyth v Bloomsbury Health Authority, Kerr L J, giving the leading judgment in the Court of Appeal, found that none of the witnesses had suggested that, in answer to a request for information or advice or for reassurance about depo-provera, the defendants had a duty to provide all the information available. On the contrary, the witnesses felt that the plaintiff had been given all the appropriate information. Kerr L Jconcluded tht Leonard J had erred in holding that there was any obligation to pass to the plaintiff all the information available to the hospital. The judge had also made repeated reference to the need to give a full picture in answer to a specific inquiry, but Kerr L J noted that no specific inquiry was found to have been made in this case. Nor could the judge’s conclusions properly be based on the remarks of Lords Diplock and Bridge in Sidaway. The question of what a patient should be told in answer to a general inquiry (or indeed when no such inquiry was made) must depend, Kerr L J said: "upon the circumstances, the nature of the inquiry, the nature of the information which is available, its reliability, relevance, the condition of the patient and so forth". Neill L J, concurring, said that the extent of the duty to give information had to be judged in the light of the state of medical knowledge at the time of the events complained of. Neither Lord Diplock nor Lord Bridge (in Sidaway) had laid down any rule of law to the effect that when a patient asked questions or expressed doubts a doctor had to tell the patient everything that might be available in the files of a consultant, who might have made a special study of the
subject. Even though a specific inquiry was not made in this case, the Court of Appeal went on to consider whether the general test in Bolam would apply if it had been. Kerr L-7 was not convinced that the Bolam test was irrelevant to the issues of what answers a doctor should give to specific inquiries. Nor was he convinced that Lords Diplock and Bridge had intended to hold otherwise: "there may always be grey areas, with differences of opinion, as to what are the proper answers to be given to an inquiry, even a specific one, in the particular circumstances of any case".
Blythv Bloomsbury Health Authority. Court of Appeal: Kerr, Neill, and DIANA DIANA BRAHAMS, LJJ. Feb 5, 1987.
Balcombe
Barrister-at-law
Professor Macfarlane, who died on March 26 aged 79, director of the MRC Blood Coagulation Unit at the Churchill Hospital, Oxford, from 1959 to 1967. He was appointed to a chair of clinical pathology at Oxford in 1964. was
College and St Bartholomew’s he qualified in 1933. Early appointments included those of assistant clinical pathologist at the Postgraduate Medical School, London, and assistant bacteriologist at the Wellcome Physiological Research Labortory. During the war he served with the RAMC, part of the time in a mobile bacteriological research unit. Educated
at
Cheltenham
Hospital, London,
R. B. writes: "He always seemed able to pose the right question in his scientific work. Although he added to knowledge in many branches of medicine, his main contribution concerned blood coagulation and the treatment of haemophilia. I remember a crucial time in the mid-1950s when he said: ’If we can see how factor VIII works, we can measure it; if we can measure it, we can make it; if we can make it, we can treat patients’. This reasoning was the basis of at least two decades of work involving the development of assays, the discovery of fractionation techniques by Dr Bidwell and her colleagues, and trials of material and assays in the treatment of severely injured
patients. "As time passed it became clear that the work could not be done sideline in a busy haematology laboratory and, in 1959, the MRC made Professor Macfarlane the director of the Blood Coagulation Research Unit and Haemophilia Centre. The clinical side of the work was then managed by Dr C. Rizza, consultant physician to the unit. The widening scope of the work now required international standardisation of assays and therapeutic materials. The DHS S and the Blood Transfusion Service had to be persuaded to make adequate amounts of factor VIII; and detailed recording of patient treatment was required to assess the numbers of patients in the country and their individual needs and to monitor adverse effects of treatment. Attempts (finally successful) were launched to enlarge the Haemophilia Centre to accommodate the growing needs of the increasing numbers of patients. With the encouragement of the DHSS, many haemophilia centres were set up throughout the country. "As a friend he was interesting and entertaining, with a vast fund of extraordinary anecdotes. He was a concerned and reliable support in difficulty and had a unique capacity to find apt words for a particular situation. "Professor Macfarlane retired in 1968 to live in Scotland with his wife, Hilary. In 1981 he became president of the Haemophilia Society, a duty that he took seriously, travelling down from Scotland every year to present the Society’s gold medal, which was named after him. During his retirement he also wrote best-setting biographies of Lord Florey and Sir Alexander Fleming. The choice of these two personalities may seem odd, but I think that he realised, from our work on haemophilia, the vast difference between an interesting scientific observation from which one might say’Now it may be possible (in the case of penicillin) to treat septic conditions’ and the actual application of the discovery, which involves the infinite capacity for taking pains in practically all branches of life." as a
HOWARD JOHN ROGERS MB Cantab, PhD Lond, FRCP
Professor Rogers, who died on March 30 at the age of 43, professor of clinical pharmacology in the United Hospitals Medical School, Guy’s Hospital, and his early death is a great loss to clinical pharmacology.
was
Medicine and the Law
Obituary
Doctor’s Duty to Answer Patients’ Inquiries THE plaintiff sued Bloomsbury Health Authority claiming that staff
University College Hospital, London, had given her negligent advice or information about the contraceptive drug ’Depo-Provera’, which had then been injected following immunisation against rubella. She alleged that she had been insufficiently informed about possible side-effects; that had she been better informed she would not have agreed to the injection; and that she had suffered side-effects due to depo-provera. In May, 1985, Leonard ‘ rejected most of the allegations about side-effects but found the hospital staff negligent in respect of information given, and awarded the plaintiff C3600 (Lancet 1985; i: 1517). The health authority appealed, successfully, claiming that the judge had applied the wrong test when deciding the extent of a doctor’s duty of reply to questions from a patient. In the Sidaway case (Lancet 1985; i: 528) the issue had been whether the absence of any warning of a very small degree of serious risk inherent in an operation or treatment was negligent. The House of Lords had decided by a majority that the test to be applied was generally that laid down in Bolam (1957)-namely, had the doctor acted in accordance with the practice accepted as proper by a body of responsible and skilled medical opinion? However, Lord Diplock had mentioned the natural tendency of many people to want to
ROBERT GWYN MACFARLANE CBE, MD Lond, FRCP, FRS
at
decide for themselves whether or not to consent to treatment and he remarked "No doubt if the plaintiff in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know". Lord Bridge, with whom Lord Keith agreed, said that when questioned specifically by a patient about the risks of a particular treatment, the doctor had a duty "to answer both truthfully and as fully as the questioner requires". In Blyth v Bloomsbury Health Authority, Kerr L J, giving the leading judgment in the Court of Appeal, found that none of the witnesses had suggested that, in answer to a request for information or advice or for reassurance about depo-provera, the defendants had a duty to provide all the information available. On the contrary, the witnesses felt that the plaintiff had been given all the appropriate information. Kerr L Jconcluded tht Leonard J had erred in holding that there was any obligation to pass to the plaintiff all the information available to the hospital. The judge had also made repeated reference to the need to give a full picture in answer to a specific inquiry, but Kerr L J noted that no specific inquiry was found to have been made in this case. Nor could the judge’s conclusions properly be based on the remarks of Lords Diplock and Bridge in Sidaway. The question of what a patient should be told in answer to a general inquiry (or indeed when no such inquiry was made) must depend, Kerr L J said: "upon the circumstances, the nature of the inquiry, the nature of the information which is available, its reliability, relevance, the condition of the patient and so forth". Neill L J, concurring, said that the extent of the duty to give information had to be judged in the light of the state of medical knowledge at the time of the events complained of. Neither Lord Diplock nor Lord Bridge (in Sidaway) had laid down any rule of law to the effect that when a patient asked questions or expressed doubts a doctor had to tell the patient everything that might be available in the files of a consultant, who might have made a special study of the
subject. Even though a specific inquiry was not made in this case, the Court of Appeal went on to consider whether the general test in Bolam would apply if it had been. Kerr L-7 was not convinced that the Bolam test was irrelevant to the issues of what answers a doctor should give to specific inquiries. Nor was he convinced that Lords Diplock and Bridge had intended to hold otherwise: "there may always be grey areas, with differences of opinion, as to what are the proper answers to be given to an inquiry, even a specific one, in the particular circumstances of any case".
Blythv Bloomsbury Health Authority. Court of Appeal: Kerr, Neill, and DIANA DIANA BRAHAMS, LJJ. Feb 5, 1987.
Balcombe
Barrister-at-law
Professor Macfarlane, who died on March 26 aged 79, director of the MRC Blood Coagulation Unit at the Churchill Hospital, Oxford, from 1959 to 1967. He was appointed to a chair of clinical pathology at Oxford in 1964. was
College and St Bartholomew’s he qualified in 1933. Early appointments included those of assistant clinical pathologist at the Postgraduate Medical School, London, and assistant bacteriologist at the Wellcome Physiological Research Labortory. During the war he served with the RAMC, part of the time in a mobile bacteriological research unit. Educated
at
Cheltenham
Hospital, London,
R. B. writes: "He always seemed able to pose the right question in his scientific work. Although he added to knowledge in many branches of medicine, his main contribution concerned blood coagulation and the treatment of haemophilia. I remember a crucial time in the mid-1950s when he said: ’If we can see how factor VIII works, we can measure it; if we can measure it, we can make it; if we can make it, we can treat patients’. This reasoning was the basis of at least two decades of work involving the development of assays, the discovery of fractionation techniques by Dr Bidwell and her colleagues, and trials of material and assays in the treatment of severely injured
patients. "As time passed it became clear that the work could not be done sideline in a busy haematology laboratory and, in 1959, the MRC made Professor Macfarlane the director of the Blood Coagulation Research Unit and Haemophilia Centre. The clinical side of the work was then managed by Dr C. Rizza, consultant physician to the unit. The widening scope of the work now required international standardisation of assays and therapeutic materials. The DHS S and the Blood Transfusion Service had to be persuaded to make adequate amounts of factor VIII; and detailed recording of patient treatment was required to assess the numbers of patients in the country and their individual needs and to monitor adverse effects of treatment. Attempts (finally successful) were launched to enlarge the Haemophilia Centre to accommodate the growing needs of the increasing numbers of patients. With the encouragement of the DHSS, many haemophilia centres were set up throughout the country. "As a friend he was interesting and entertaining, with a vast fund of extraordinary anecdotes. He was a concerned and reliable support in difficulty and had a unique capacity to find apt words for a particular situation. "Professor Macfarlane retired in 1968 to live in Scotland with his wife, Hilary. In 1981 he became president of the Haemophilia Society, a duty that he took seriously, travelling down from Scotland every year to present the Society’s gold medal, which was named after him. During his retirement he also wrote best-setting biographies of Lord Florey and Sir Alexander Fleming. The choice of these two personalities may seem odd, but I think that he realised, from our work on haemophilia, the vast difference between an interesting scientific observation from which one might say’Now it may be possible (in the case of penicillin) to treat septic conditions’ and the actual application of the discovery, which involves the infinite capacity for taking pains in practically all branches of life." as a
HOWARD JOHN ROGERS MB Cantab, PhD Lond, FRCP
Professor Rogers, who died on March 30 at the age of 43, professor of clinical pharmacology in the United Hospitals Medical School, Guy’s Hospital, and his early death is a great loss to clinical pharmacology.
was