R.I.P.SIDAWAY: Patient-Oriented Disclosure—a Standard Worth Waiting For?

On February 21 1985, clinical negligence lawyers, both claimant and defence, could be forgiven for feeling slightly confused by the judgment of the House of Lords (as it then was) in the infamous case of Sidaway.1 All things considered, though, medical defence lawyers probably felt more at ease with the decision than their claimant counterparts. Despite a meagre and somewhat confusing attempt by Lord Bridge (with whom Lord Keith agreed) to restrict the ambit of the Bolam2 test in respect of preoperative medical information, the legal standard of disclosure was still principally governed by the commonly accepted practice of the medical profession. Nineteen years later, on October 14 2004, a sea change began to take shape. In Chester v Afshar, their Lordships saw fit to depart from the traditional rules of causation to allow the patient to recover damages when, on conventional but for principles, she should not have been entitled to succeed.3 Leaving aside the legal rights and wrongs of what their Lordships actually did, one thing is clear: Chester was a judgment that propelled the notion of patient autonomy to centre stage in a negligence action. Undoubtedly a breath of fresh air for claimant lawyers and anyone else concerned with patient rights, the judgment was not well received and continues to attract a steady stream of academic criticism from negligence purists.4 In a practical sense, defence lawyers certainly slept less comfortably in their beds in the wake of Chester, and the case caused a great deal of concern for those involved in the National Health Service (NHS). Nonetheless, the perceived anticipated consequences did not eventuate, and the true importance of the ruling remains largely symbolic in nature.