Information overload

If you are advised to take care when walking down the stairs because there is a risk that you could trip, break your neck and kill yourself '“ what would you next say to your adviser?

The clinical negligence decision of the House of Lords in Chester v Afshar [2004] UKHL 41 is most usually thought of as a case on causation. In brief, Chester was a remarkable three-to-two decision. It awarded damages to a patient, Chester, because Afshar, a distinguished consultant neurosurgeon, negligently failed properly to inform her of the very small, unavoidable risk of paralysis (cauda equina syndrome) even though her evidence was that she would have had the operation anyway.

This second area, the legacy of informed consent, potentially has even wider implications than the remarkable decision on causation (which does not apply to non-medical cases).

What appears to have been overlooked is that the House of Lords has not only provided redress for uninformed patients; all patients in all circumstances must now be subjected to a full list of risks from their doctors. The more they inform the better, say the House of Lords and, indeed, the insurers. The duty of the medical professional to a patient includes within its ambit all the consequences of the risks about which the patient ought to be informed.

A lone voice of caution was Lord Templeman in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 883H, cited in Chester, who did not subscribe to the theory that the patient is entitled to know everything. Some information might confuse and other information might alarm the patient.

Although the causation part of the decision in Chester may not apply to other professions, this is not true of the 'duty to warn' aspect. Essentially all professionals have to advise consumers about possible risks but take a view on the risks as opposed to the benefits in each case. For example, the Law Society in the Solicitors Code of Conduct, in force since 1 July 2007, requires solicitors to provide information on costs 'to ensure that clients are given the information necessary to enable them to make appropriate decisions about if and how their matter should proceed'. Whether it is an architect building a house, a solicitor acting in court proceedings or an accountant advising on tax affairs, all are obliged in practice to explain why they have advised that the costs that will be incurred justify their advice to take a certain course of action and the risks of that course of action.

Professional view

In most professions the consumer pays for the services of their professional adviser directly, and most advisers are fully alive to the importance of communicating their views in a balanced and understandable manner: otherwise the client may well seek cheaper advice from another professional who writes shorter and less pessimistic letters.

Medical professionals providing services funded by the NHS have no such constraint '“ on the contrary, their obligation after Chester and reinforced by their insurers is the more information about risks the better. There is some implicit requirement for the patient to understand the information being provided in the consent they give. Nevertheless, such a message would result in enthusiastic and diligent medical professionals frequently feeling obliged to communicate considerable amounts of technical medical information, which is confusing and alarming to their consumer patients, and may amount to an equivalent warning of the risks of a fall down the stairs. Sadly, few consumers have sufficient medical knowledge to appreciate this.

Consumers are not expected to be skilled in the areas upon which they are seeking professional advice; they may not want to become so. It can be envisaged that painting a graphic picture of falling down the stairs to some consumers might cause them alarm and distress and, in a few, perhaps a phobia of stairs, causing considerable fear and inconvenience. Perhaps we need to await a claim based on psychological injury, due to negligently excessive advice on risk, for reason to reappear in the medical profession.

Of wider significance is the apparent general trend to oblige professionals to provide consumers with information that many cannot understand, often in an impossibly short timescale. What if professionals satisfy both their codes of professional conduct and their indemnity insurers, but the consumer does not understand their 15-page letter or the three-hour meeting? Has the consumer really given informed consent?