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20. We may next consider the nature of information that is required to
be furnished by a Doctor to secure a valid or real consent. In Bowater v.
Rowley Regis Corporation - [1944] 1 KB 476, Scott L.J. observed :
"A man cannot be said to be truly ’willing’ unless he is in a
position to choose freely, and freedom of choice predicates, not
only full knowledge of the circumstances on which the exercise
of choice is conditioned, so that he may be able to choose
wisely, but the absence from his mind of any feeling of
constraint so that nothing shall interfere with the freedom of his
will."
In Salgo vs. Leland Stanford [154 Cal. App. 2d.560 (1957)], it was held
that a physician violates his duty to his patient and subjects himself to
liability if he withholds any facts which are necessary to form the basis of
an intelligent consent by the patient to the proposed treatment.
21. Canterbury (supra) explored the rationale of a Doctor’s duty to
reasonably inform a patient as to the treatment alternatives available and
the risk incidental to them, as also the scope of the disclosure requirement
and the physician’s privileges not to disclose. It laid down the ’reasonably
prudent patient test’ which required the doctor to disclose all material
risks to a patient, to show an ’informed consent’. It was held :
"True consent to what happens to one’s self is the informed exercise of
a choice, and that entails an opportunity to evaluate knowledgeably the
options available and the risks attendant upon each. The average
patient has little or no understanding of the medical arts, and ordinarily
has only his physician to whom he can look for enlightenment with
which to reach an intelligent decision. From these almost axiomatic
considerations springs the need, and in turn the requirement, of a
reasonable divulgence by physician to patient to make such a decision
possible.
\005Just as plainly, due care normally demands that the physician warn
the patient of any risks to his well being which contemplated therapy
may involve.
The context in which the duty of risk-disclosure arises is invariably the
occasion for decision as to whether a particular treatment procedure is
to be undertaken. To the physician, whose training enables a self-
satisfying evaluation, the answer may seem clear, but it is the
prerogative of the patient, not the physician, to determine for himself
the direction in which his interests seem to lie. To enable the patient to
chart his course understandably, some familiarity with the therapeutic
alternatives and their hazards becomes essential\005\005\005
A reasonable revelation in these respects is not only a necessity but, as
we see it, is as much a matter of the physician’s duty. It is a duty to
warn of the dangers lurking in the proposed treatment, and that is
surely a facet of due care. It is, too, a duty to impart information which
the patient has every right to expect. The patient’s reliance upon the
physician is a trust of the kind which traditionally has exacted
obligations beyond those associated with arms length transactions. His
dependence upon the physician for information affecting his well-
being, in terms of contemplated treatment, is well-nigh abject\005\005. we
ourselves have found "in the fiducial qualities of (the physician-
patient) relationship the physician’s duty to reveal to the patient that
which in his best interests it is important that he should know." We
now find, as a part of the physician’s overall obligation to the patient, a
similar duty of reasonable disclosure of the choices with respect to
proposed therapy and the dangers inherently and potentially involve.
In our view, the patient’s right of self-decision shapes the boundaries of
the duty to reveal. That right can be effectively exercised only if the
20. We may next consider the nature of information that is required to
be furnished by a Doctor to secure a valid or real consent. In Bowater v.
Rowley Regis Corporation - [1944] 1 KB 476, Scott L.J. observed :
"A man cannot be said to be truly ’willing’ unless he is in a
position to choose freely, and freedom of choice predicates, not
only full knowledge of the circumstances on which the exercise
of choice is conditioned, so that he may be able to choose
wisely, but the absence from his mind of any feeling of
constraint so that nothing shall interfere with the freedom of his
will."
In Salgo vs. Leland Stanford [154 Cal. App. 2d.560 (1957)], it was held
that a physician violates his duty to his patient and subjects himself to
liability if he withholds any facts which are necessary to form the basis of
an intelligent consent by the patient to the proposed treatment.
21. Canterbury (supra) explored the rationale of a Doctor’s duty to
reasonably inform a patient as to the treatment alternatives available and
the risk incidental to them, as also the scope of the disclosure requirement
and the physician’s privileges not to disclose. It laid down the ’reasonably
prudent patient test’ which required the doctor to disclose all material
risks to a patient, to show an ’informed consent’. It was held :
"True consent to what happens to one’s self is the informed exercise of
a choice, and that entails an opportunity to evaluate knowledgeably the
options available and the risks attendant upon each. The average
patient has little or no understanding of the medical arts, and ordinarily
has only his physician to whom he can look for enlightenment with
which to reach an intelligent decision. From these almost axiomatic
considerations springs the need, and in turn the requirement, of a
reasonable divulgence by physician to patient to make such a decision
possible.
\005Just as plainly, due care normally demands that the physician warn
the patient of any risks to his well being which contemplated therapy
may involve.
The context in which the duty of risk-disclosure arises is invariably the
occasion for decision as to whether a particular treatment procedure is
to be undertaken. To the physician, whose training enables a self-
satisfying evaluation, the answer may seem clear, but it is the
prerogative of the patient, not the physician, to determine for himself
the direction in which his interests seem to lie. To enable the patient to
chart his course understandably, some familiarity with the therapeutic
alternatives and their hazards becomes essential\005\005\005
A reasonable revelation in these respects is not only a necessity but, as
we see it, is as much a matter of the physician’s duty. It is a duty to
warn of the dangers lurking in the proposed treatment, and that is
surely a facet of due care. It is, too, a duty to impart information which
the patient has every right to expect. The patient’s reliance upon the
physician is a trust of the kind which traditionally has exacted
obligations beyond those associated with arms length transactions. His
dependence upon the physician for information affecting his well-
being, in terms of contemplated treatment, is well-nigh abject\005\005. we
ourselves have found "in the fiducial qualities of (the physician-
patient) relationship the physician’s duty to reveal to the patient that
which in his best interests it is important that he should know." We
now find, as a part of the physician’s overall obligation to the patient, a
similar duty of reasonable disclosure of the choices with respect to
proposed therapy and the dangers inherently and potentially involve.
In our view, the patient’s right of self-decision shapes the boundaries of
the duty to reveal. That right can be effectively exercised only if the
