My doctor explained some but not all the risks of an operation. Can I make a claim against the doctor? What is the law on consent?

Every medical treatment carries risks. Depending on the complexity of the operation, the risks involved can range from a few risks to a catalogue of risks. Is the doctor obligated to explain everything (even the most remote but possible risk) to a patient?

Previous Approach

In Sidaway v. Bethlem Royal Hospital [1985] AC 871, the Court applied the Bolam test.  A doctor only needed to inform the patient what the medical profession thinks he/she ought to know. Therefore, to succeed, a claimant needed expert evidence to show that a reasonable doctor would have advised.

Present Approach

On 11 March 2015, the Supreme Court in the United Kingdom handed down the Judgment in Montgomery v. Lanarkshire Health Board [2015] AC 1430.

The approach in Montgomery is that doctors have to explain the material risks involved in any treatment and of any reasonable alternatives or variant treatments. In other words, doctors cannot simply explain risks which the medical profession thinks a patient needs to know, doctors are also required to explain risks which a reasonable patient in the patient's position would think is significant. 

In McCulloch v. Forth Valley Health Board [2023] UKSC 26, the UK Supreme Court clarified doctors do not have to explain all possible options or alternative treatments; only all the reasonable ones need to be discussed. What is reasonable is determined by the Bolam test, and not by what the doctor himself prefers. A doctor is not negligent if he fails to discuss a treatment option which is not supported by a reasonable body of medical opinion.

From patients’ perspective, Montgomery is a welcomed decision. The Court is moving away from the “doctors know best” approach to a more consumer friendly approach, enabling patients to exercise their rights and decide on the choices to make. McCulloch strikes a balance to protect doctors, relieving them from worries about the need to advise on all (even the remotely possible) options.

Both Montgomery and McCulloch are English authorities handed down after 1997. Strictly speaking, they are not binding in Hong Kong but are highly persuasive.

In Chan Siu Yim v. Dr. Cheung Sheung Kin, etc, (DCPI 2358/2013, 21 February 2017), the Court adopted the Montgomery approach when considering whether a dentist had failed to advise.

Even the “Code of Professional Conduct for the Guidance of Registered Medical Practitioners” published by the Medical Council of Hong Kong now provides that consent to medical treatment is valid only if “the doctor has provided proper explanation of the nature, effect and risks of the proposed treatment and other treatment options (including the option of no treatment)” (see §2.7(b)). Further, an explanation of the proposed treatment and risks “should be balanced and sufficient to enable the patient to make an informed decision” and “should cover not only significant risks, but also risks of serious consequence even though the probability is low (i.e. low probability serious consequence risks)” (see §§2.10.2 and 2.10.3).

In view of the above, it is very likely that the Hong Kong Courts will in the future continue to endorse the approach in Montgomery and McCulloch, especially when the medical profession has already accepted the principles in Montgomery. In fact, most hospitals also have provisions in their regulations or patients’ charter which suggest that they are steering towards the Montgomery approach, specifying that patients have a right to know about common risks and appropriate alternatives of any proposed treatment.

Causation

It is important to note that even if a claimant succeeds in proving that the doctor’s explanation was inadequate, he still needs to prove that if proper explanation had been given, he would not have undergone the proposed treatment, or at least such treatment may be deferred. This obstacle is often difficult for a claimant to overcome.

The claimant also needs expert evidence to prove that the proposed treatment caused loss and damage.

Please feel free to contact us to discuss your individual case.

This article provides general views only and must not be treated as a substitute for legal advice for individual cases. Whilst care has been taken to ensure that details are correct, no responsibility can be taken for losses arising from reliance upon its contents.