Analysis of the Legal and Ethical Issues from Case: Chester vs. Afshar (Essay Sample)

A critical analysis of the legal and ethical issues stemming from the following case: Chester v Afshar [2004] UKHL 41
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The case aimed at establishing causation after an injury following consent to medical treatment.
Facts: Chester, the claimant, had sustained back pain for a number of years, and this significantly limited her capacity to walk, as well as interfering with her control of her bladder. A medical examination that was conducted showed that there was a problem with her spinal cord. Consequently, the defendant, the doctor, advised that Chester undergoes surgery to rectify the problem. Notably, the risk carried in this surgery was very minor, estimated at 1%, but ended up worsening the condition. However, the defendant failed to warn the claimant of this risk prior to the surgery. Therefore, the claimant agreed to undergo the operation, but despite the surgery being performed responsibly, the claimant fell within the 1%. The claimant then claimed that had she been warned of the potential risk, she would not have consented to undergo the surgery. During the first instance, the judge determined that even though the defendant was not negligent in his performance, he was to be held liable for failing to give the claimant adequate information on the risks involved. When the case was appealed, the Court of Appeal upheld the initial judgement.
Issues: During the appeal, the defendant claimed that there were no causations since the claimant was bound to consent to undergo the operation even if it took longer, and this did not change the fact that the operation bore risks. According to the defendant, paralysis was bound to happen; only that it was delayed.
Held: The appeal was dismissed by the House of Lords in a 3-2 split decision. It was held that the defendant had failed in his professional duty and thus the claimant deserved a remedy. The reasoning given was that the claimant did not have to prove that she would not have consented to the surgery had she received all the relevant information. Further, dissent from Lord Bingham and Lord Hoffman was based on the claim that this was a case of coincidence and even if the defendant had given the claimant the relevant information, it would only have but delayed the operation, and so there was no way to stop the paralysis from occurring.
This case is considered one of the various cases that make the history of informed consent to be confused. During the early stages of the 20th century, medical practice was based on beneficence and paternalism, implying that medical practitioners were accorded immunity from suit regardless of the judgment that they made. Even though a case of ‘very limited’ informed consent was accepted in Chatterton v Gerson, it still sparks debate on whether that is part of the United States’ enthusiasm for litigation that is not applicable in English law. However, this principle has become increasingly important especially over the last 25 years. For instance, Chester v Afshar was a case where this principle was recognized. However, whether or not Chester succeeded in redefining the law wholly can be determined by a critical analysis of the legal and ethical issues stemming from the following case. These issues have also affected the preceding and subsequent case law.
Notably, it has been difficult to define the standard of care in risk disclosure. According to the Chester v Afshar [2004] UKHL 41, one of the ethical issues is that the starting point in disclosing risk should be the Bolam test. The test argues that a medical practitioner cannot be held negligent if they act in a manner that is accepted by the medical body as being proper and responsible. Initially, lack of expertise in patients and its existence among clinicians implied that the clinical relationship was dominated by paternalism. However, this ethical issue of prudent doctor standard has been re-assessed over the decades.
The equal application of Bolam’s test to treatment and diagnosis and disclosure of information and risks was first confirmed in Chatterton, and then later in Hills v Potter. This helped in addressing the ethical issue of lack of disclosure as witnessed in Chester v Afshar. Further, Sidaway v Royal Bethlem Hospital contributed to shaping the law to ensure that disclosure would be judged based on the professional standards, although it would be done in a diluted form. Application of the test and the existence of the opinion of a medical body that failed to warn of the 1-2% risk of damage ended up in failure. Although Lord Scarman recognized the applicability of Bolam in diagnosis and treatment, he drew from Canterbury v Spence and decided that it would be strange for the court to conclude that the law should empower doctors to determine when or when not warning and informing patients of risks should be done. On the contrary, it is the duty of the court to find out and consider the wants and expectations of the patient. However, such an inquiry would be frustrated because it is subjective; therefore, the court should consider what a prudent patient would think of as being significant.
Lord Diblock was part of the majority and opted for a strict Bolam approach. He said that there was no justifiable reason for Bolam to be treated as doing anything else other laying down a principle, and this should be applicable to all aspects of the duty of care. On the other hand, Lord Bridge drew his reasoning on Reibl v Hughes, to just his advocating for a case against the simple application of the test; he took a stand between the pro-patient and pro-doctor approaches that were supported by by Lord Templeman. Even though Bolam was applied in a diluted form by Sidaway, it was only Scarman who had regard to the fundamental human rights of the patient; the other views had been based on the basis of the duty of the doctor, as opposed to the rights of the patient. Despite the fact that there were three different opinions and that none of them was a dissent, Sidaway was an affirmation of the professional standard of Bolam. However, suggestions show that Diplock was the minority and Bolam was rejected by the majority.
Further, Chester v Afshar shows that the English law lays more emphasis on the duty of the doctor than on the right of the patient to be involved in making decisions on their health. This has led to the suggestion that courts in the United Kingdom have dropped adherence to the Bolam test that ensures protection of the human rights of the patient. Instead, the UK courts have turned to the use of the Australian approach shown in Rogers v Whitaker, that showed that the autonomy of the patient was well and live.
Chester v Afshar also helped in eliminating the doubt that the majority had the impact on the legal and ethical issues stemming out of the case. In Chester v Afshar, it is evident that the majority embraced what was considered the informed consent with a vengeance. They did this with the recognition that medical paternalism had already been out-dated and that it no longer rules in medical practice. Despite the fact that the judgments that were made at this point were startling due to lack of clarity, the judges concluded that they did not understand ‘serious’ was used in reference to serious consequences on the patients or seriousness in terms of percentage. According to the judges, another ethical issue that arose from the case regarded causation; they sought to evaluate whether or not the conventional approach needed to be varied. The ethical issue raised was because of the causal uncertainty on what Miss Chester would have done if the doctor had informed her of all the risks involved in consenting to the surgery such as the 1-2% risk of paralysis. According to the majority of the judges, Miss Chester would have still undergone the surgery and paralysis would eventually have happened. Therefore, her claim was bound to fail, based on traditional causation rules.
All that Miss Chester was required was to prove she would have considered the risk of paralysis before consenting to the surgery, had she been given all the relevant information by the doctor. In this regard, Lord Hope stated that the formulation of a duty of care is an exercise that is driven by policy. He implied that causation is a matter than involves establishing whether or not the defendant should be held accountable and liable for the damage or harm resulting from their lack of giving the claimant all the relevant information such as the 1-2% paralysis risk. The policy statement made by Lord Hope was also alluded by Steyn. Further, a legal issue that stems from this case is that the explanation of the decision of Chester v Afshar was done based on the normative conclusion of the Lordships; the decision was not a causative one. The Lordships concluded that Mr Afshar did not cause the injury that led to Miss Chester’s paralysis, but he should be held liable due to his failure to inform Miss Chester of the 1-2% paralysis risk. This notion is supported by the fact that shrouding of normative issues in casual terminology contributes to judges presenting their judgements as though they have been forced into carving out rules of causation that are exceptionally unorthodox. This was due to the legal and ethical issues surrounding the case.
This analysis can thus be used to draw the conclusion that the ethical and legal issues that stem from Chester v Afshar have helped in redefining the concept of consent in the English law. However, there are various instances in which the primacy according to the autonomy in Chester v Afshar does not fit in other cases. Such cases where the primacy is not applica...