C) Rosy is unhappy that Dr Sun did not inform her about the risk of the treatment.

Advise Rosy whether she could sue Dr Sun for non-disclosure of the risks of the treatment. (10 marks)

1.

2.

Issue Whether Rosy can sue Dr Sun for nondisclosure of the risks of the treatment Law
To obtain a legally valid consent three elements of consent need to be satisfied.
I) Consent must be real
A patient must be given sufficient information about the treatment. She must know what he is consenting to and the nature and purpose of the purposed treatment must be understood by the patient. In the case of Chatterton v Gherson [1981] Bristow J stated that once the patient is informed in broad terms of the nature of the procedure which is intended and gives her consent, the consent is real. In the doctrine of informed consent, a doctor should give the patient sufficient information for him to understand the nature of any proposed treatment, its implications and risks, and the consequences of not undergoing the treatment. The patient should decide whether or not to undergo any medical procedure.

In the case of Salgo v Leland Stanford Jr University Board of Trustees (1960)

Fact: The doctor failed to warn his patient of the risk of paralysis inherent in the performance of a translumbar aortography, and as a result of the operation the patient suffered severe paralysis of the lower limbs. The patient claimed that the doctor was negligent in failing to warn the notice of paralysis. Held: A physician would violate 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 and full disclosure of the facts is necessary to an informed consent.

In the case of Canterbury v Spence (1972)

Fact: The plaintiff suffered paralysis as a result of undergoing laminectomy. He claimed that doctor was negligent in failing to warn him of the risk of paralysis. Held: Robinson J stated that the doctor has a duty to disclose all material risks and the test of materiality is not whether the patient would attach any significance to it but whether a reasonable person in the patients position would have done so.

In the case of Hills v Potter [1984]

Fact: The plaintiff was paralyzed following an operation to correct a neck deformity and asserted that the defendant had never told her that she might worse off following the operation. All three neurosurgeons testifying as expert witnesses stated that they would have acted similarly as the defendant which means that the risk of possible paralysis would not have been given to the patient. Held: The professional standard of practice applies to a doctors duty to disclose in the same manner that it applies to duty with respect to diagnosis and treatment. This means the medical practitioner need only to tell patients what other doctors thinks they should be told. The standard of disclosure is to be based on medical judgment.

In the case of Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital [1985]

Fact: The plaintiff underwent an operation on her spine to relieve pressure on one of the nerve roots. Unfortunately, during the operation, her spinal cord was damaged leaving her disabled. The neurosurgeon had told her about the risk of damage to the nerve root (a risk about 2%) but had not told her about damage to the spinal cord (a risk of 1%). The plaintiff argued that the defendant had been negligent in not telling her of the risk of damage to the spinal cord. Held: It was a matter for the doctors clinical judgment which risks should be disclosed to enable the patient to make a rational decision. Thus the plaintiffs claim failed.

In the case of F v R (1983) Fact: A married woman who had no desire to have any more children was advised to have a tubal litigation operation. She was told that the operation would ensure that she will not have any children in the future but she was not told that there was a 1% failure rate of the operation being reversible. The operation was performed competently but unfortunately, the procedure given reversed itself and she became pregnant. She brought an action against the doctor for failing to inform her of the 1% risk that the operation might reverse itself. Held: The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law notwithstanding his conduct accords or not with the practices of his profession or some part it. The medical judgment may be relevant but not conclusive in determining the adequacy of disclosure.

In the case of Rogers v Whitaker (1992) Fact: Ms. Maree Lynette, aged 47, lost most of the sight of her right eye as a result of being penetrated by a stick when she was a child. She had normal vision on her left eye and had managed to lead a substantially normal life. Her ophthalmic surgeon, Mr Christoper Rogers advised her that he could perform surgery to remove scar tissue on her right eye, which would improve the appearance of the eye and would probably restore significant sight to the eye. Further, the operation would help control her early glaucoma. She incessantly questioned Mr Rogers as to the possible complications of the operation and obviously concerned that her good eye might be inadvertently harmed during the surgery of the other eye. She even suggested that her left eye be covered during the operation in order to protect her good eye. However, Ms Whitaker did not ask whether it was possible that an operation on her right eye might itself affect the other eye. In fact, there was a small risk that this could occur if she developed a rare condition known as sympathetic ophthalmia. Mr Rogers did not mention the risk to her and Ms Whitaker elected to have the proposed surgery. Unfortunately, the operation did not improve the sight in her right eye as symphathetic ophthalmia developed in Ms Whitakers left eye. This resulted in her losing all her sight in the left eye and thus rendering her virtually blind. Held: Mr Rogers had failed in his duty by omitting to tell her of the risk of contracting sympathetic ophthalmia for three reasons. Firstly, Ms Whitaker had questioned him about the possible complications involved in the procedure. Secondly, she had expressed a great deal of concern about protecting her left eye, even though she had not asked it specifically about whether the operation on her right eye could lead to her developing a debilitating inflammation of her left eye. Lastly, the materialization of the risk had disastrous consequences for her.

In the case Liew Sin Kiong v Dr Sharon M Paulraj [1996] Fact: The plaintiff was a patient of Dr Molly Elizabeth Matthew who was a government ophthalmologist. Dr Molly had been treating the plaintiff for juvenile glaucoma, including two operations under general anaesthesia on his eyes in 1990. The operations done were two trabelectomies, one for each eye. This was done in order to create the outflow of intraocular fluid so as to reduce the intraocular pressure. The operation was a success with the plaintiff retaining his vision and the intraocular pressure was controlled with medication. However about two years later, even with medication, the intraocular pressure could not be controlled. At that time Dr Molly recommended the plaintiff should go for an operation in Kuala Lumpur, as required treatment was not available in Sabah. The plaintiff did not heed the recommendation, instead, sought treatment from the defendant who was an ophthalmologist practicing in the private clinic in Sabah. After conducting an examination, the defendant prescribed some medication and conducted further operation o both eyes. The plaintiff was asked to sign a consent form. After the operation, the plaintiff suffered severe pain in his eyes. He was admitted to the Queen Elizabeth Hospital in Kota Kinabalu but as a result of the infection from the operation, he lost sight of his right eye. Held: The defendant was not liable as the plaintiff failed to prove that the defendant had not acted in accordance with the standards of a competent ophthalmologist. Although the consent form did not state that the defendant had informed the plaintiff of the risk of the infection, it did not mean that the risk was not explained. If a doctor was of the view that a patient need of an operation then such benefit outweighed a remote risk as the doctor should be allowed the therapeutic privilege in deciding whether or not to disclose the risk.

In the case Tan Ah Kau v Government of Malaysia [1997] Fact: The plaintiff a lorry driver was paralyzed from the waist down after the defendant carried out a surgical operation. The main issued before the court was whether at the time when the plaintiff signed the consent forms, the plaintiff understood the nature and consequences of the consent and whether he knew the subject matter that was central to his consent. In his evidence, the plaintiff claimed that he had not given real and informed consent to the treatment as no adequate information was given to him to enable him to comprehend the nature and consequences of the consent. The plaintiff maintained that he had signed two blank forms at the same time but was not given any explanation before the operation. He was only told that if he were not operated on, he would not be able to walk in the future and if he was operated, he would find relief from the pain within two weeks of the operation. These were the reasons why he signed the forms. The plaintiff was not given the opportunity to decide whether to opt for or opt out of the operation. It was not fully explained to him the fact that was he was experiencing was a slow, growing tumour and that, in the absence of an operation, it would take 20 years to lead to paralysis. It was not explained to him that if operated immediately, there was a strong possibility that he would immediately become paralyzed. Held: No consent was actually given by the plaintiff, as the contents of the consent had not been fully and comprehensively explained to the plaintiff. He was not given the opportunity to opt out of the operation. He was a man of 40 years with a wife and eight children and was diagnosed as having a slow growth cancer. It is illogical that a man would opt for an operation that subjected to a risk of instant paralysis.

II) Capacity to consent

A competent adult patient once properly informed has also the unassailable legal right to refuse any or all medical treatment or care. In the case of St Georges Healthcare NHS Trust v S [1998]

Fact: The Court of Appeal found that the trial judge had been wrong in authorizing a caesarian section because the woman was fully competent and had refused to consent to the treatment. She had fully understood the risks that her life and the babys life would be put in danger if he proceeded with natural delivery. The right to refuse treatment for an adult of sound mind reflected the ethical principles of the autonomy of the individual and the right of selfdetermination. Held: Even when her life depends on receiving medical treatment and adult of sound mind is entitled to refuse it. The fetus is not protected because it is not considered as a separate being from its mother. As such its needs for medical care and assistance cannot prevail over the mother.

III) Consent must be voluntary

Consent must be given through the patients own free will, with no duress or undue influence. In the case of Freeman v Home Office [1984]

In the case of Re T [1992]

Fact: A prisoner had been injected with certain drugs, apparently for the treatment of a personality disorder. The relevant issue was whether the prisoner had given the consent voluntarily to the treatment. Held: The prisoner could not give the valid consent to the prison officer as the officer was not a doctor but his disciplinarian. The patient who was pregnant was admitted to hospital after a road accident. The patients mother was a devout Jehovahs Witness although the patient was not of that faith. After being advised by her mother, she told the doctors not to give her blood transfusion and asked for alternative treatments. She signed a form refusing blood transfusion. When her condition deteriorated, the court granted a declaration that it would be lawful to administer blood transfusion.

3)

Application: In applying to the current situation Rosy must first fulfilled all three elements consent to determine whether or not the consent is validly given. Firstly, the consent given by Rosy must be real. She must know what she is consenting to and the nature and purpose of the purposed treatment must be understood. In applying Tan Ah Kaus case here, Dr Sun has not made known any risks to Rosy if she undergoes the treatment. He has not told to Rosy that she might become paralyzed after the treatment. No consent was actually given by Rosy, as the contents of the consent had not been fully and comprehensively explained to her. She was not given the opportunity to opt out of the operation. Merely signing the consents form does not mean Rosy know and understand all the risk especially that she might be paralyzed after the back-surgery. Thus consent given is not real.

Cont. Secondly, Rosy must have the capacity to give the consent. Applying the facts, Rosy who is 58 years old is competent to have the capacity to make decision to give consent for the treatment. Once she is given the necessary information about the treatment she is assumed to have the capacity to make decision based on her age and mental capacity. In this case, she has the capacity to make the consent. Lastly, consent given must be given voluntarily. In applying to the current facts, consent given by Rosy is made voluntarily because there are no elements of duress and undue influence. However, it is assumed that the Rosy gave her consent because of the relationship between her as the patient and Dr Sun as the doctor. In a normal circumstances consent will be given as the patient thinks that doctor would do the best for the patient. Rosy who suffered back injuries would certainly believe that Dr Sun will give her the best treatment thus gave her consent towards it. Thus, the consent is not voluntarily given.

4) Conclusion:
Consent given Rosy is not valid as it not fulfilled the all the elements of consent. The non-disclosure of the risks of the treatment leads the unlawful consent. Thus, Dr Sun is liable for not informing Rosy the risks of the treatment that she might be paralyzed and can be sued.