1. Morden J in Kelly v Hazlett (1976) 75 DLR (3d) 356, 555–556 (Ont HC) puts it succinctly: ‘The issue of “informed consent” can arise in both battery and negligence cases: with respect to the former a lack of proper information communicated by the doctor to the patient can vitiate an apparent consent, while with respect to the latter, failure to see to it that the patient is properly advised can amount, in certain circumstances, to an act of negligence.’ The failure of medical advice in trespass is in respect of liability for unconsented treatment; in negligence, it is in respect of liability for medical malpractice.

2. [1981] 1 All ER 257.

3. [1984] 1 All ER 1018, CA; [1985] 1 All ER 643, HL.

4. Keeton and Others, Prosser and Keeton on Torts (1984) pp 189–90 states: ‘A rapidly growing form of medical malpractice litigation involves the doctrine of “informed consent”, which concerns the duty of the physician or surgeon to inform the patient of the risks involved in treatment or surgery. The earliest cases treated this as a matter of vitiating consent, so that there was liability for battery [see Salgo v Leland Stanford Jr University Board of Trustees, 154 Cal App 2d 560, 317 P 2d 170 (1957)]. Beginning around 1960, however, it began to be recognised that the matter was really one of the standard of professional conduct, and so negligence has now generally displaced battery as a basis for liability [see Natanson v Kline, 186 Kan 393, 350 P 2d 1093 (1960)].’ See also the leading articles on the genesis of the transatlantic doctrine of informed consent: McCoid, ‘A Reappraisal of Liability for Unauthorised Medical Treatment’ (1957) 41 Minn LR 381, and Plante, ‘An Analysis of Informed Consent’ (1968) 36 Fordham LR 639.

5. A misnomer misleadingly called the doctrine of ‘informed consent’ as though it were descriptive of the defence of consent. It is now used in the United States and Canada, where it originated, more as a basis for liability in negligence than as a defence to trespass. As such, it is better termed as the ‘duty to inform’. For the defence of consent, ‘informed consent’ is tautology: all consent must be made with knowledge and in this sense all consent is informed consent. The perennial difficulty is the degree of knowledge that is required in giving consent. Decisions are frequently made on imperfect, rather than perfect, information.

6. [1985] 1 All ER 643. Per Lord Scarman at p 646: ‘The case is plainly of great importance. It raises a question which has never before been considered by your Lordships’ House: has the patient a legal right to know, and is the doctor under a legal duty to disclose, the risks inherent in the treatment which the doctor recommends? It is arguable that liability for negligence for failure of medical advice was introduced into English law before Sidaway in Hatcher v Black, (1954) Times, 2 July; Bolam v Friery Hospital Management Committee [1957] 2 All ER 118; and Sankey v Kensington and Chelsea and Westminster Health Authority, unreported, Evans J, QBD, 2 April 1982.

7. To establish the breach of the duty to inform the House of Lords used the ‘reasonable doctor’ test as opposed to the wider ‘prudent patient’ test used in Canada (Reibl v Hughes (1980) 144 DLR (3d) 1, Can SC) and in some cases in the United States (see Canterbury v Spence 464 F 2d 772, DC Cir 1972).

8. [1981] 1 All ER 257, 265. Emphasis added.

9. [1983] 3 All ER 716, 728.

10. [1983] 1 All ER 1036, 1044. Emphasis added.

11. Browne-Wilkinson LJ, in the case [1984] 1 All ER 1018, 1031, said: ‘Cases of this sort [transatlantic medical cases on informed consent] can be approached in two different ways. First, it can be said that the operation constituted a trespass to the person of the patient since, in the absence of full knowledge of the risks, the patient has not validly consented to the operation. Second, it can be said that (although there was a valid consent to the operation) the doctor was in breach of a duty of care in failing to give sufficient information of the risks to the plaintiff. It is, in my judgment, clear that the genesis of the transatlantic doctrine of informed consent lies in the first of these approaches.’ Dunn LJ, at p 1029, stated in respect of the doctrine: ‘The … argument … that unless the patient's consent to the operation was a fully informed consent the performance of the operation would constitute a battery … [i]s not the law of England’. Emphasis added.

12. [1984] 1 All ER 1018, 1026. Emphasis added.

13. Ibid at p 1029. Emphasis added.

14. Ibid at p 1032.

15. [1985] 1 All ER 643, 647.

16. Ibid at p 650.

17. (1980) 114 DLR (3d) 1 (Can SC).

18. Ibid at pp 10–11.

19. Fleming, The Law of Torts (1983) at p 75 states: ‘Failure to gain the patient's informed consent may expose the physician to liability for battery or negligence, depending on whether the patient remained uninformed about the basic nature of the operation or only about collateral risks. In the former case, the apparent consent is vitiated and the operation itself becomes trespassory; in the latter case, the doctor can be charged only with negligence in his duty to inform’. Rogers. Winfield and Jolowicz on Torts (1984) at pp 706–707, states: ‘If the doctor fails to explain the ‘inherent risks’ of a procedure and the patient suffers from one of those risks may the patient then complain that his consent was vitiated for lack of knowledge? Though there has been little litigation in England on ‘informed consent’ it seems that the answer to this question is ‘No’ and that the patient may not treat the procedure as a battery unless there has not even been an explanation of the broad nature of the procedure. However, going beyond this basic duty to give sufficient information to enable understanding of the nature of the treatment there is a further duty, sounding in negligence, to explain the procedure and its implications in the way a careful and responsible doctor would do.’ Gerald Robertson in a leading article on this area in England, ‘Informed Consent to Medical Treatment’ (1981) LQR 102, 123, states: ‘The recent English cases have firmly rejected the view that failure to inform of inherent risks can vitiate consent and give rise to a successful action for battery.’ He postulates two policy reasons to support this: the effect of Letang v Cooper [1965] 1 QB 232, of confining trespass to deliberate, hostile interference which is inconsistent with medical treatment, and the judicial policy of limiting medical liability by not allowing escalation of this type of medical liability through trespass which does not have the causation requirement and the therapeutic defence which exists in negligence. These are questionable: Letant v Cooper restricts trespass to intentional acts and not to the narrower ambit of hostile acts, and the hurdle of causation and the benefit of therapeutic defence in this type of medical cases in negligence is as formidable to overcome or obtain as the difficulty of establishing that non-disclosure of medical advice is of a sufficient degree to exclude consent in trespass.

20. Compare R v Williams [1923] I KB 340, where a choir master was convicted of rape when he seduced a young pupil under the fraudulent misrepresentation that this would improve her voice with R v Clarence (1888) 22 QBD 23, where a husband was acquitted of criminal assault in respect of marital intercourse when he infected his wife with venereal disease which he knew he had but fraudulently concealed from her.

21. In Burrell v Harmer [1967] Crim LR 169, the defendant tattooed two young boys, causing them pain and inflammation. The defendant was convicted of criminal assault as the boys did not give their real consent since they were unable to understand the nature of the act. It is unclear in what sense the boys did not understand the nature of the act: was it tattooing or tattooing with inflammation and pain? In Bolduc and Bird v The Queen (1967) 63 DLR (2d) 82 (CanSC) the majority of the Supreme Court of Canada held that there was no indecent assault when a doctor conducted pelvic examination on a patient with her consent in view of a lay friend whom the doctor fraudulently misrepresented as a medical intern. However, Spencer J, at p 87, strongly dissented:‘… it was consent to the examination … in the presence of a doctor, and not … a mere layman…. She only gave this consent to such serious invasion of her privacy on the basis that [the lay friend] was a doctor…. That consent was the consent which the complainant granted.’ Street, The Law of Torts (1983) at p 68, states: ‘… there seems no logical way of deciding when a mistake is collateral’ and gave the following examples in fn 8: ‘What if the defendant impersonates the plaintiff's husband, or a bigamist “marries” the innocent plaintiff and has intercourse (held actionable in Graham v Saville [1945] 2 DLR 489. Ontario CA [but not rape in Papadimitropoulos v R (1957) 98CLR249 (HC) where marriage pretended]), or the singing teacher convinces his pupil that intercourse will improve her voice? To what does the plaintiff consent - intercourse, marital intercourse, intercourse free from venereal disease any penetration?’ The difficulty in these borderline cases is the impracticability of demarcating the difference between ‘nature of act’ and ‘collateral matters’.

22. There are no English civil cases, outside the medical cases, where the criminal law distinction has been applied. In the Irish case of Hegarty v shine (1878) 14 Cox CC 145, the plaintiff failed in civil assault against her paramour who infected her during cohabitation with venereal disease which he fraudulently concealed from her. Although the Irish Court of Appeal used the criminal law distinction that the fraud here did not vitiate consent because it was collateral (intercourse free from disease) which operated as an inducement, and was not to the nature of the act (sexual intercourse), the Court was heavily influenced by the element of ‘ex turpi causa’. The latest American Restatement 2d, s 892B would impose liability in Hegarty v Shine as fraud going to the extent of the harm reasonably expected.

23. See for eg, Heuston and Chambers, Law of Torts (1981) at p 473, and Rogers, Winfield and Jolowicz on Tort, at p 707.

24. Fleming, The Law of Torts (1983) at pp 74–75: ‘An assent to bodily contact under a mistake as to its harmful or offensive character ought not to be treated as a genuine consent, if the mistake is known and concealed by the defendant. Thus, an action for assault ought to be available to one who permits another to touch him with a piece of metal which, unknown to him but known to the actor, is heavily charged with electricity; or to a woman who consents to intercourse with a man who inveigled her into a bigamous marriage without disclosing that he already had a wife, or to a naive girl who submits to indecent liberties by a physician in the belief that this is a necessary part of the treatment. Such mischief is best deterred by permitting recovery.’ The same position is taken by the American Restatement 2d, s 892B.

25. Trinidade and Cane, The Law of Torts in Australia (1985) at p 228.

26. [1981] 1 All ER 257, 265.

27. [1983] 1 All ER 1036, 1044.

28. In the Canadian case of Kelly v Hazlett (1976) 75 DLR (3d) 536, 559 (Ont HC), although Morden J drew the distinction between medical trespass and negligence on the basis of type of medical information not communicated, he admitted that the distinction was difficult: ‘However, it has to be recognised that this test has both its practical and, perhaps, its policy frailties. In some cases it may be difficult to distinguish, and separate out, the matter of consequential or collateral risks from the basic nature and character of the operation or the procedure to be performed…. The more probable the risk the more it could be said to be an integral feature of the nature and character of the operation.’.

29. Unreported, (1981) 93 LSJS 405.

30. See Thake v Maurice [1984] 2 All ER 513, 522, per Peter Pain J: ‘I refer to Sidaway… Chatterton v Gerson… and Hills v Potter …[supra]. I do not think that these decisions have much bearing on the present case. This is not a case where there was some debate whether the patient should be told of the risk of the operation itself going wrong. It was a case where there was a risk that nature might…reverse the effect of an operation that was initially perfectly satisfactory.’ Emphasis added.

31. In Zamparo v Brisson (1981) 32 OR (2d) 75, the Ontario Court of Appeal held that in case of elective surgery a surgeon is under a duty to advise the patient of the benefits of surgery as against the risks involved, although he need not advise on whether the surgery should or should not be undergone by the patient. In Hopp v Lepp (1980) 112 DLR (3d) 67, the Supreme Court of Canada held that the failure of a surgeon to inform a patient of his experience, if asked by the patient, could be a breach of the surgeon's duty to inform. The Canadian experience shows that the content of medical advice can be taken widely; that a doctor's duty to inform is not confined to risks inherent in treatment and could be extended to cover benefits in treatment, consequences of treatment, and even to the experience of the doctor. Ian Kennedy (1984) 47 MLR 454, 455, states:‘… a … patient needs to know not only about risks but also about alternatives. The latter requirement is often overlooked, but is of central significance’.

34. [1986] 1 All ER 497.

33. (1986) Times, 17 June.

34. (1983) 33 SASR 189. The finding of negligence was reversed on appeal, but the principle of liability was not questioned. The second and third reported Australian cases in this area of liability, Battersby v Tottman and State of South Australia [1985] 37 SASR 524 and Gover v State of South Australia and Perriam (1985) 39 SASR 543, involved failure to warn against risks inherent in treatment. See Stephen F. Smith, ‘Some Recent Cases on Informed Consent’ (1984) 9 Adelaide LR 413, which assumes that the type of failure of medical advice, as used in England, is the proper distinction between trespass and negligence in Australia. Two unreported Australian cases have so far discussed the relationship between trespass and negligence in the area of failure of medical advice. They are the two earliest cases in this area of liability and the only successful cases so far. Hart v Herron, unreported, Fisher J, Sup Ct, NSW, 11 July 1980, supports the English type of failure of medical advice distinction between trespass and negligence. D v S, unreported, Matheson J, Sup Ct, SA, (1981) LSJS 405, however, supports, to some extent, the degree of failure of medical advice distinction as urged in this article, despite the express adoption by the judge of the English ‘nature-risk’ distinction between trespass and negligence. See text above.

35. See supra, n 30.

36. Supra. Apart from the issue of negligent medical advice, these cases also contained the additional issue of claim for wrongful birth. This issue is irrelevant here.

37. See Haluhka v University of Saskatchewan (1965) 53 DLR (3d) 436.

38. In deciding the extent of medical advice under the duty to inform in the tort of negligence, consideration must also be given, apart from the medical technicalities, to the state of the patient in each case: the condition of the patient and his ailment, his psychological state and the level of his comprehension and inquistiveness. Lords Bridge, Keith and Templeman in the House of Lords in Sidaway [1985] 1 All ER 643, all agreed that if a doctor were questioned specifically by a patient, the doctor's duty is to answer (subject probably to the defence of ‘therapeutic privilege’) truthfully and fully. In the Australian case F v R. (1983) 33 SASR 189, 192, King CJ held: ‘What a careful and responsible doctor would disclose depends upon the circumstances. The relevant circumstances include the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient, and the general surrounding circumstances.’ He repeated this part of his judgment in Battersly v Tottman (1985) 37 SASR 524, 527. See also Smith v Auckland Hospital Board [1965] NZLR 191. The same consideration (without the therapeutic privilege defence) applies in trespass when determining the consent of the patient to treatment from the standpoint of a reasonable patient in the circumstances of the treatment.

39. See for example, Kelly v Hazlett (1976) 73 DLR (3d) 536.

40. [1981] 1 All ER 257, 265.

41. See supra, n 7.

42. The majority decision of Lords Bridge, Keith and Diplock. Lord Scarman [1985] 1 All ER 643, 649–52, disagreed with the majority on this: ‘The profession it is said, should not be judge in its own cause; or less emotively but more correctly, the courts should not allow medical opinion as to what is best for the patient to override the patient's right to decide for himself whether he will submit to the treatment offered him…. If… the Bolam principle is to be applied to the exclusion of any other test to advice and warning, there will be cases in which a patient who suffers injury through ignorance of a risk known to the doctor has no remedy…. If it be recognised that a doctor's duty of care extends not only to the health and well-being of his patient but also to a proper respect for his patient's rights, the duty to warn can be seen to be part of the doctor's duty of care.’ Lord Bridge's counter to this ‘prudent patient’ test, at p 662–663:‘… a decision [of] what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice whether or not to undergo a particular treatment must primarily be a matter of clinical judgment [emphasis added]. It would follow from this that the issue whether non-disclosure in a particular case should be condemned as a breach of the doctor's duty of care is an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test.’ Lord Keith agreed with Lord Bridge. The other majority Law Lord. Lord Diplock. held at pp 657–8: ‘This general duty [of care of a doctor] is not subject to dissection into a number of component parts to which different criteria or what satisfy the duty of care apply, such as diagnosis, treatment and advice (including warning of any risks of something going wrong however skilfully the treatment advised is carried out). ‘The Bolam case itself embraced failure to advise the patient of the risk involved in the electric shock treatment as one of the allegations of negligence against the surgeon as well as negligence in the actual carrying out of treatment in which that risk did result in injury to the patient. The same criteria were applied to both these aspects or the surgeon's duty of care. In modern medicine and surgery such dissection of the various things a doctor has to do in the exercise of his whole duty of care owed to his patient is neither legally meaningful nor medically practicable.’ The fifth Law Lord, Lord Templeman, held that a doctor is under a duty to inform to the extent of a balance between sufficient information to enable a patient to make a rational judgment and protecting the patient's interest by not frightening or confusing him. This seems to be a compromise of the difference above: a ‘reasonable doctor and patient’ test. If the patient's right to self-determination in the medical process were sufficiently protected under trespass in the way suggested in this article, the Law Lords would probably have less difficulty in excluding the reasonable patient standard in negligence for failure of medical advice.

43. See Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 HI.; Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] WLR I, PC. In Sidaway [1985] 1 All ER 643, Lords Bridge and Keith expressed preparedness to override accepted general medical practice where disclosure of a particular medical information is so obviously necessary, even to a non-expert, to enable the patient to make a considered decision on the treatment. These situations would, however, probably be more appropriately taken up under trespass than negligence.

44. Bolam v Friern Hospital Management Committee [1957] I WLR 582. Case approved by the House of Lords in Whitehouse v Jordan [1981] 1 WLR 246, and Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635.

45. There is one problem here, however, of protecting a patient's right to self-determination in the medical process under trespass. This occurs when the treatment involves the administration of a drug (eg the facts in Battersby v Tottman, supra, where there was a drug treatment to alleviate psychosis without warning against the risk of blindness). Failure of advice here will not be trespass because of the lack of directness. It may be possible for the law to overcome this by regarding the causal sequence here as sufficiently direct for the purpose of developing medical trespass to protect the patient's right to self-determination.

46. In this respect, patients should be encouraged by the medical practitioner's advice to make the correct medical decision, but if they should insist and it so turns out subsequently, they are entitled to make the wrong medical decision. The doctor is in the clear so long as he has given, in the circumstances of the case, reasonable medical advice.

47. See Teff, ‘Consent to Medical Procedures: Paternalism, Self-Determination or Therapeutic Alliance’ (1985) LQR 432, and, in particular, the note by Andrew Grubb in (1985) CLJ 199.

48. Brian Bromberger, ‘Patirnt Participation in Medical Decision-Making: Are the Courts the Answer?’ (1983) UNSW LJ I, supports the trespass approach over negligence in protecting the patient's right to self-determination in the medical process. See also, Michael A. Jones, ‘Doctor Knows Best?’ (1984) 100 LQR 360, who points out that the destinction between trespass and negligence by type of failure of medical advice has put the availability of medical trespass ‘beyond recall’. It is hoped that the degree distinction as suggested in this article will restore trespass.

49. This is not a recent phenomenon in England; it is, in fact, also the position in Canada and the United States for some time. See generally, Plante, ‘An Analysis of “Informed Consent”’ (1968) 36 Fordham LR 639, and Picard, “The Tempest of Informed Consent” in Mar, Studies in Canadian Tort Law (1977) at p 129.

50. The possible disadvantages to a doctor of liability in medical trespass over negligence include the following: the burden is on the doctor to prove consent to negative liability in trespass, the measure of damages may be wider (direct damages instead of foreseeable damages), causation is more easily established in trespass than negligence, the benefit of therapeutic privilege defence is not available in trespass, medical trespass probably carries more reprobation against the doctor than negligence, and medical insurance may presently be less easily available in respect of medical trespass than negligence.

51. [1985] 1 All ER 643, 665.

52. See Reibl v Hughes, supra.

53. Deliberate (fraudulent) concealment of medical information which is not for therapeutic reason and which is medically unacceptable is the tort of negligence. This is an instance of intentional misconduct which could be trespass or negligence: contra Lord Denning in Letang v Cooper [1965] 1 QB 232. Falling below the standard of a reasonable man (here a reasonable doctor) in a duty situation is the tort of negligence even if done intentionally. It is not less the tort of negligence just because it is done deliberately instead of negligently. Lord Denning's equation of intentional equals trespass and carelessness equals negligence is useful and practical for most purposes, but it is not entirely accurate. It is not possible theoretically to square negligence as a type of misconduct with negligence as a tort which is more than a type of misconduct: it is a legal liability relationship where a duty is determined to exist and there is a breach of this negligently or intentionally (rarely though).

54. [1981] 1 All ER 257, 265. This is so because if a patient has already consented to the medical procedure, his only remaining complaint is medical malpractice in the tort of negligence. To establish this liability, it is for him to satisfy the tort: to show the breach and the causal link between this and the damage that has arisen.

55. [1981] 1 All ER 257, 265. In Scott v Bradford 606 P 2d 554 (Ok1 App 1980) Doolin J of the Supreme Court of Oklahoma agreed with this instruction on the law given to the jury by the trial judge: ‘If treatment is completely unauthorized and performed without any consent at all, there has been a battery. However, if the physician obtains a patient's consent but has breached his duty to inform, the patient has a cause of action sounding in negligence for failure to inform … regardless of the due care exercised at treatment…’. It is submitted that this is also the position of the English law.