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patient possesses enough information to enable an intelligent choice.
The scope of the physician’s communications to the patient, then, must
be measured by the patient’s need, and that need is the information
material to the decision. Thus the test for determining whether a
particular peril must be divulged is its materially to the patient’s
decision : all risks potentially affecting the decision must be unmasked.
"
It was further held that a risk is material ’when a reasonable person, in
what the physician knows or should know to be the patient’s position,
would be likely to attach significance to the risk or cluster of risks in
deciding whether or not to forego the proposed therapy’. The doctor,
therefore, is required to communicate all inherent and potential hazards of
the proposed treatment, the alternatives to that treatment, if any, and the
likely effect if the patient remained untreated. This stringent standard of
disclosure was subjected to only two exceptions : (i) where there was a
genuine emergency, e.g. the patient was unconscious; and (ii) where the
information would be harmful to the patient, e.g. where it might cause
psychological damage, or where the patient would become so emotionally
distraught as to prevent a rational decision. It, however, appears that
several States in USA have chosen to avoid the decision in Canterbury by
enacting legislation which severely curtails operation of the doctrine of
informed consent.
22. The stringent standards regarding disclosure laid down in
Canterbury, as necessary to secure an informed consent of the patient,
was not accepted in the English courts. In England, standard applicable is
popularly known as the Bolam Test, first laid down in Bolam v. Friern
Hospital Management Committee - [1957] 2 All.E.R. 118. McNair J., in a
trial relating to negligence of a medical practitioner, while instructing the
Jury, stated thus :
"(i) A doctor is not negligent, if he has acted in accordance with a
practice accepted as proper by a responsible body of medical men
skilled in that particular art. \005\005 Putting it the other way round, a
doctor is not negligent, if he is acting in accordance with such a
practice, merely because there is a body of opinion that takes a
contrary view. At the same time, that does not mean that a medical
man can obstinately and pig-headedly carry on with some old
technique if it has been proved to be contrary to what is really
substantially the whole of informed medical opinion.
(ii) When a doctor dealing with a sick man strongly believed that
the only hope of cure was submission to a particular therapy, he could
not be criticized if, believing the danger involved in the treatment to be
minimal, did not stress them to the patient.
(iii) In order to recover damages for failure to give warning the
plaintiff must show not only that the failure was negligent but also that
if he had been warned he would not have consented to the treatment.
23. Hunter v. Hanley (1955 SC 200), a Scottish case is also worth
noticing. In that decision, Lord President Clyde held :
"In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional men, nor
because he has displayed less skill or knowledge than others would have
shown. The true test for establishing negligence in diagnosis or treatment
on the part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care."
He also laid down the following requirements to be established by a
patient to fasten liability on the ground of want of care or negligence on
patient possesses enough information to enable an intelligent choice.
The scope of the physician’s communications to the patient, then, must
be measured by the patient’s need, and that need is the information
material to the decision. Thus the test for determining whether a
particular peril must be divulged is its materially to the patient’s
decision : all risks potentially affecting the decision must be unmasked.
"
It was further held that a risk is material ’when a reasonable person, in
what the physician knows or should know to be the patient’s position,
would be likely to attach significance to the risk or cluster of risks in
deciding whether or not to forego the proposed therapy’. The doctor,
therefore, is required to communicate all inherent and potential hazards of
the proposed treatment, the alternatives to that treatment, if any, and the
likely effect if the patient remained untreated. This stringent standard of
disclosure was subjected to only two exceptions : (i) where there was a
genuine emergency, e.g. the patient was unconscious; and (ii) where the
information would be harmful to the patient, e.g. where it might cause
psychological damage, or where the patient would become so emotionally
distraught as to prevent a rational decision. It, however, appears that
several States in USA have chosen to avoid the decision in Canterbury by
enacting legislation which severely curtails operation of the doctrine of
informed consent.
22. The stringent standards regarding disclosure laid down in
Canterbury, as necessary to secure an informed consent of the patient,
was not accepted in the English courts. In England, standard applicable is
popularly known as the Bolam Test, first laid down in Bolam v. Friern
Hospital Management Committee - [1957] 2 All.E.R. 118. McNair J., in a
trial relating to negligence of a medical practitioner, while instructing the
Jury, stated thus :
"(i) A doctor is not negligent, if he has acted in accordance with a
practice accepted as proper by a responsible body of medical men
skilled in that particular art. \005\005 Putting it the other way round, a
doctor is not negligent, if he is acting in accordance with such a
practice, merely because there is a body of opinion that takes a
contrary view. At the same time, that does not mean that a medical
man can obstinately and pig-headedly carry on with some old
technique if it has been proved to be contrary to what is really
substantially the whole of informed medical opinion.
(ii) When a doctor dealing with a sick man strongly believed that
the only hope of cure was submission to a particular therapy, he could
not be criticized if, believing the danger involved in the treatment to be
minimal, did not stress them to the patient.
(iii) In order to recover damages for failure to give warning the
plaintiff must show not only that the failure was negligent but also that
if he had been warned he would not have consented to the treatment.
23. Hunter v. Hanley (1955 SC 200), a Scottish case is also worth
noticing. In that decision, Lord President Clyde held :
"In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional men, nor
because he has displayed less skill or knowledge than others would have
shown. The true test for establishing negligence in diagnosis or treatment
on the part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care."
He also laid down the following requirements to be established by a
patient to fasten liability on the ground of want of care or negligence on
