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Case:
BGH NJW 1975, 1161 VI. Civil Senate (VI ZR 93/73) = VersR 1975, 831 = JZ 1975, 535
Date:
15 April 1975
Judges:
Professor B.S. Markesinis
Copyright:
K. Lipstein

The defendants accuse the plaintiff of having offered indecent periodicals and picture magazines on their railway bookstalls. After the third defendant, a student of theology, had lodged a complaint with the police he went on the morning of 4 July 1971 together with the other defendants, a lawyer and two acquaintances, to the railway bookstall of the plaintiff in B and invited the sales assistant to remove from the shelves within one hour those publications which he described as indecent. When he found upon his return that they had not been removed, the third defendant took twenty-four newspapers and periodicals from the shelves and from a stand and took them in front of the railway station, where the fourth defendant defaced them with paint. In addition he wrote in paint on the display window of the kiosk ‘Away with filthy pornography’. Meanwhile the first defendant, in the presence of the second defendant, engaged in discussion with passers-by.

On the same evening the first and third defendant went to the plaintiff’s kiosk at the railway station in H and made the same demand that all the publications described by them as pornographic were to be removed within an hour. Finding upon their return that their demand had not been complied with, the third defendant began to go through the papers on the news-stand, as a result of which some periodicals fell onto the ground. Using a megaphone he invited passers-by to lodge a complaint against the plaintiff. The first defendant protested against the sale of pornographic publications by holding up a poster.

The plaintiff demands that the defendants should be prohibited from removing from their outlets publications or other objects without any intention of purchasing them, from soiling or damaging them or from affecting them physically.

The district court allowed the claim. The defendants appealed unsuccessfully to the Court of Appeal of Karlsruhe. Their further appeal was rejected for the following

Reasons

The Court of Appeal regards the claim for an order of prohibition as justified under §§ 823 I, 1004 I BGB. It holds correctly that the defendants, acting together, violated the plaintiff’s property and interfered with his established and operating business. The appellants do not contest that they acted as trespassers in the meaning of § 1004 I BGB, even if they did not themselves act against the plaintiff. It is only disputed whether the defendants acted illegally and whether a danger exists of a repetition. The Court of Appeal answered both questions in the affirmative. It held that the acts of the defendants were not justified as self-defence nor as permissible defence of others, even if . . . the publications concerned were indecent in the meaning of the wording then in force of § 184 of the Criminal Code and were therefore a danger to young persons according to § 6 of the Act against the Distribution of Publications Endangering Young Persons. In the opinion of the Court of Appeal the infringements of the law committed so far and the conduct of the defendant indicated the likelihood of a repetition. In the result the appeal must fail.

I. 1. The Court of Appeal holds correctly that the defendants cannot seek to justify their acts by relying on the right of self-defence or the defence of others (§ 227 BGB) even if the plaintiff . . . should have contravened § 84 of the Criminal Code or the Act against the Distribution of Publications Endangering Young Persons by displaying and selling the publications to which the defendants took exception. This right of self-help does not enable citizens to maintain morals and order, even if the order is protected by criminal law. Their maintenance is the task of the competent organs of the State; the ordinary citizen must not assume their function. In a State governed by law it is indispensable that the maintenance and protection of orderly community life is to be entrusted primarily to the organs of the State bound to observe the Constitution and not to private initiative [references].

As a matter of principle, an individual can only confront actively a disturbance of public order, even if it involves a criminal act, by relying on his right of self-defence or of defending others . . . if the perpetrator of the disturbance attacks at the same time individual interests which are protected as such [references].

(a) Contrary to the contention of the appellants this is not necessarily the case if § 184 of the Criminal Code or §§ 3, 4, 6 of the Act against Distribution of Publications Endangering Young Persons are infringed. Certainly § 184 of the Criminal Code in the wording of 20 July 1971, which applies in the present case, punishes advertising and selling indecent publications in order to protect modesty, morals, and decency in sexual matters in the interest of the community as a whole [references]. The penal sanction sought to protect the sexual feelings current in the community, not the particular notion of morals and decency held by an individual, which may even clash with the sanction. The individual was included in the sphere of protection of the sanction indirectly only inasmuch as normally he benefits from it too. For this reason he was not accorded the right, in the case of contraventions of § 184 of the Criminal Code, to avail himself of the right under § 172 of the Code of Criminal Procedure to apply for the initiation of proceedings to force a prosecution.

Similarly, the Act against the Distribution of Publications Endangering Young Persons in providing for the protection of children and adolescents only serves the State as a guardian. It is the function of the State, not of the individual citizen, to safeguard the order which these provisions seek to protect.

(b) Naturally this does not rule out the possibilities that an infringement against these provisions may coincide with an attack against individual interests ‘susceptible of self-defence’ with the result that the citizen concerned himself or another may intervene in order to fend off this attacker. However, this presupposes a situation in which precisely the protected individual interests are affected by the dangers connected with the ‘attack’ and that thus the protected sphere of the individual is touched by the coincidence of ‘attack’ and individual interest; the fact alone that the order protected by the criminal law has been disturbed is insufficient. Those relying on the right of self-defence or to defend others must prove that a conflict of the kind described above exists.

The Court of Appeal holds correctly that the pleadings of the defendants are deficient in this respect. In particular they cannot rely on the argument that merely by offering for sale in their kiosks at railway stations publications—assumed to be a criminal act—they have directly violated the right of personality of the defendants by attacking their honour or otherwise, even if the defendants may have regarded the display of such publications as a sufficient slight of their person, as a threat to their intimate feelings or to their family life.

It is unnecessary in the present case to examine the restrictions imposed by our law upon the trade in pornography by the protection of the personality of the individual and of its dignity [references]. In the present case . . . periodicals and picture magazines, the publication of which was prohibited and punishable, are said to have been offered for sale on the shelves of the premises together with the usual range of publications available at a railway bookstall. However, no customer was compelled against his will to take more than fleeting notice of these publications; his personal attention was not drawn to them, nor were they advertised obtrusively. The personality of the individual which is protected by the Constitution was only affected by this confrontation quantitatively and qualitatively as part of an anonymous public, no more than an individual member of the community is troubled by disturbances of public order. The personality of the customer is neither disregarded nor injured in an insulting manner, nor are his protected intimate feelings injured, even if it is remembered that the protection of personal integrity, both physical and mental, must be rated highly.

It is true that human personality and its free expression through self-determination and self-reliance, guaranteed by the Constitution and the legal order, also requires citizens among themselves to respect the innermost sphere of the individual [references]. This precept does not imply, however, that every citizen who is worried or disturbed by a public disregard of general morals and of criminal law by another is entitled for this reason only to proceed against the attacker by way of self-help, unless the attack is directed against himself; in the present case an individual citizen has first sought a confrontation in order to make public interests his own private affair. Such an assumption of an ‘office of censor’ would indeed run counter to the constitutional guarantee. Instead it must remain for the State itself, which is primarily charged with adjusting such tensions, to select the place, the time, and the extent of any action against the violation of morals and of law within the community.

(bb) The same applies to the claim of the fourth defendant, the father of the child, who relies on the right of self-defence or of the defence of others, on the ground that the attack is directed against the right to educate a child (see Art. 6 of the Constitution). In this respect, too, no evidence has been adduced to show that the conduct of the plaintiff constitutes a direct danger to the task of the fourth defendant to educate his child . . .

(cc) This Division does not agree with the arguments of the appellants that the courts, by decreeing the prohibition asked for by the plaintiff, would protect a criminal activity by the plaintiff. The question whether the competent public authorities can proceed against the plaintiff, having regard to his trade in the publications objected to, is not affected by a judgment in the terms applied for. This judgment is confined to preventing conduct by the defendants which is to be disapproved by law for the sake of orderly community life and against whom the plaintiff may defend himself by a claim to desist placed at his disposal by private law. Nor is it an abuse of law if the plaintiff resorts to the courts by bringing an action against the defendants.

Addendum 1

Extracts from Sidaway v Bethlehem Royal Hospital and Maudsley Hospital [1985] AC 871 House of Lords

This was an appeal from the Court of Appeal which had dismissed an appeal from a decision of Skinner J who had dismissed the appellant’s action.

LORD BRIDGE OF HARWICH: ... The appellant underwent at the hospital for which the first respondents are the responsible authority an operation on her cervical vertebrae performed by a neurosurgeon, since deceased, whose executors are the second respondents. The nature of the operation was such that, however skilfully performed, it involved a risk of damage to the nerve root at the site of the operation or to the spinal cord. The trial judge described that risk as ‘best expressed to a layman as a 1% or 2% risk of ill-effects ranging from the mild to the catastrophic’. The appellant in fact suffered, without negligence on the surgeon’s part in the performance of the operation, a degree of damage to the spinal cord of which the effects, if not catastrophic, were certainly severe. Damages have been agreed, subject to liability, in the sum of £67,500.

The appellant denied that she had seen the surgeon at all before the operation was performed. This evidence the judge rejected1 He found that, before the appellant consented to undergo the operation, the surgeon explained the nature of the operation to her in simple terms and warned her of the possibility and likely consequences of damage to the nerve root, but did not refer to the risk of damage to the spinal cord. Most unfortunately, the surgeon who performed the operation died before these proceedings were instituted. Accordingly, the trial judge, the Court of Appeal and your Lordships’ House have all been denied the advantage of what would clearly have been vital evidence on the issue of liability, not only the surgeon’s own account of precisely what he had told this appellant, but also his explanation of the reasons for his clinical judgment that, in her case, the information he gave her about the operation and its attendant risk was appropriate and sufficient. The judge was thus driven to base the finding, to which I have earlier referred, in part on inference from documents, but mainly on the evidence of other doctors as to what they knew of the deceased surgeon’s customary practice when discussing with patients an operation of the kind the appellant was to undergo. The result is that liability falls to be considered, in effect, in relation to that customary practice, independently of the vitally important individual doctor/patient relationship which must play so large a part in any discussion of a proposed operation with a patient. That introduces an element of artificiality into the case which we may deplore but cannot avoid.

There was a difference of opinion between the neurosurgeons called as expert witnesses whether they themselves would, in the circumstances, have warned the appellant specifically of the risk of damage to the spinal cord. But the one expert witness called for the appellant agreed readily and without reservation that the deceased surgeon, in omitting any such warning, would have been following a practice accepted as proper by a responsible body of competent neurosurgeons.

Broadly, a doctor’s professional functions may be divided into three phases:
diagnosis, advice and treatment. In performing his functions of diagnosis and treatment, the standard by which English law measures the doctor’s duty of care to his patient is not open to doubt. ‘The test is the standard of the ordinary skilled man exercising and professing to have that special skill.’ These are the words of McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586, approved by this House in Whitehouse v Jordan [1981] 1 WLR 246 at 258 per Lord Edmund-Davies and in Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 per Lord Scarman. The test is conveniently referred to as the Bolam test. In Maynard’s case Lord Scarman, with whose speech the other four members of the Appellate Committee agreed, further cited with approval the words of the Lord President (Clyde) in Hunter v Hanley 1955 SLT 213 at 217:

‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men ... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. ...‘

The language of the Bolam test clearly requires a different degree of skill from a specialist in his own special field than from a general practitioner. In the field of neuro-surgery it would be necessary to substitute for the Lord President’s phrase ‘no doctor of ordinary skill’, the phrase ‘no neurosurgeon of ordinary skill’. All this is elementary and, in the light of the two recent decisions of this House referred to, firmly established law.

The important question which this appeal raises is whether the law imposes any, and i~ so what, different criterion as the measure of the medical man’s duty of care to his patient when giving advice with respect to a proposed course of treatment. It is clearly right to recognise that a conscious adult patient of sound mind is entitled to decide for himself whether or not he will submit to a particular course of treatment proposed by the doctor, most significantly surgical treatment under general anaesthesia. This entitlement is the foundation of the doctrine of ‘informed consent’ which has led in certain American jurisdictions to decisions and, in the Supreme Court of Canada, to dicta on which the appellant relies, which would oust the Bolam test and substitute an ‘objective’ test of a doctor’s duty to advise the patient of the advantages and disadvantages of undergoing the treatment proposed and more particularly to advise the patient of the risks involved.

There are, it appears to me, at least theoretically, two extreme positions which could be taken. It could be argued that, if the patient’s consent is to be fully informed, the doctor must specifically warn him of all risks involved in the treatment offered, unless he has some sound clinical reason not to do so. Logically, this would seem to be the extreme to which a truly objective criterion of the doctor’s duty would lead. Yet this position finds no support from any authority to which we have been referred in any jurisdiction. It seems to be generally accepted that there is no need to warn of the risks inherent in all surgery under general anaesthesia. This is variously explained ~ ground that the patient may be expected to be aware of such risks or that they are relatively remote. If the law is to impose on the medical profession a duty to warn of risks to secure ‘informed consent’ independently of accepted medical opinion of what is appropriate, neither of these explanations for confining the duty to special as opposed to general surgical risks seems to me wholly convincing.

At the other extreme it could be argued that, once the doctor has decided what treatment is, on balance of advantages and disadvantages, in a patient’s best interest, lie should not alarm the patient by volunteering a warning of any risk involved, however grave and substantial, unless specifically asked by the patient. I cannot believe that contemporary medical opinion would support this view, which would effectively exclude the patient’s right to decide in the very type of case where it is most important that he should be in a position to exercise that right and, perhaps even more significantly, to seek a second opinion whether he should submit himself to the significant risk which has been drawn to his attention. I should perhaps add at this point, although the issue does not strictly arise in this appeal, that, when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor’s duty must, in my opinion, be to answer both
truthfully and as fully as the questioner requires.

The decision mainly relied on to establish a criterion of the doctor’s duty to disclose the risks inherent in a proposed treatment which is prescribed by the law and can be applied independently of any medical opinion or practice is that of the District of Columbia Circuit Court of Appeals in Ganterbury v Spence 464 F 2d 772 (1972). The Judgment of the court (Wright, Leventhal and Robinson JJ), delivered by Robinson J, expounds the view that an objective criterion of what is a sufficient disclosure of risk is necessary’ to ensure that the patient is enabled to make an intelligent decision and cannot be left to be determined by the doctors. He said (at 784):

Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.’

In an attempt to define the objective criterion it is said (at 787) that —‘the issue on non-disclosure must be approached from the viewpoint of the reasonableness of the physician’s divulgence in terms of what he knows or should know to be the patient’s informational needs.’

A risk is required to be disclosed —‘when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.’

The judgment adds (at 788): ‘Whenever non-disclosure of particular risk information is open to debate by reasonable-minded men, the issue is for the finder of facts,’

The court naturally recognises exceptions from the duty laid down in the case of an unconscious patient, an immediate emergency or a case where the doctor can establish that disclosure would be harmful to the patient.

Expert medical evidence will be needed to indicate the nature and extent of the risks and benefits involved in the treatment (and presumably of any alternative course). But the court affirms (at 792): ‘Experts are unnecessary to a showing of the materiality of a risk to a patient’s decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision.’ In English law, if this doctrine were adopted, expert medical opinion whether a particular risk should or should not have been disclosed would presumably be inadmissible in evidence.

I recognise the logical force of the Canterbury doctrine, proceeding from the premise that the patient’s right to make his own decision must at all costs be safeguarded against the kind of medical paternalism which assumes that ‘doctor knows best’. But, with all respect, I regard the doctrine as quite impractical in application for three principal reasons. First, it gives insufficient weight to the realities of the doctor/patient relationship. A very wide variety of factors must enter into a doctor’s clinical judgment not only as to what treatment is appropriate for a particular patient, but also as to how best to communicate to the patient the significant factors necessary to enable the patient to make an informed decision whether to undergo the treatment. The doctor cannot set out to educate the patient to his own standard of medical knowledge of all the relevant factors involved. He may take the view, certainly with some patients, that the very fact of his volunteering, without being asked, information of some remote risk involved in the treatment proposed, even though he describes it as remote, may lead to that risk assuming an undue significance in the patient’s calculations. Second, it would seem to be quite unrealistic in any medical negligence action to confine the expert medical evidence to an explanation of the primary medical factors involved and to deny the court the benefit of evidence of medical opinion and practice on the particular issue of disclosure which is under consideration. Third, the objective test which Canterbury propounds seems to me to be so imprecise as to be almost meaningless. If it is to be left to individual judges to decide for themselves what ‘a reasonable person in the patient’s position’ would consider a risk of sufficient significance that he should be told about it, the outcome of litigation in this field is likely to be quite unpredictable.

I note with interest from a learned article entitled ‘Informed Consent to Medical Treatment’ (1981) 97 LQR 102 at 108 by Mr Gerald Robertson ... that only a minority of states in the United States of America have chosen to follow Canterbury and that since 1975 ‘there has been a growing tendency for individual states to enact legislation which severely curtails the operation of the doctrine of informed consent.’ I should also add that 1 find particularly cogent and convincing the reasons given for declining to follow Canterbury by the Supreme Court of Virginia in Bly v Rhoads 222 SE 2d 783 (1976).

Having rejected the Canterbury doctrine as a solution to the problem of guarding the patient’s right to decide whether he will undergo a particular treatment advised by his doctor, the question remains whether that right is sufficiently safeguarded by the application of the Bolam test without qualification to the determination of the question what risks inherent in a proposed treatment should be disclosed. The case against a simple application of the Bolam test is cogently stated by Laskin CJC, giving the judgment of the Supreme Court of Canada in Reibi v Hughes (1980) 114 DLR (3d) I at 13:

‘To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.’

I fully appreciate the force of this reasoning, but can only accept it subject to the important qualification that a decision 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. 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. But I do not see that this approach involves the necessity ‘to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty’. Of course, if there is a conflict of evidence whether a responsible body of medical opinion approves of non-disclosure in a particular case, the judge will have to resolve that conflict. But, even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as for example the 10% risk of a stroke from the operation which was the subject of the Canadian case of Reibi v Hughes (1980) 114 DLR (3d) 1. In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient’s right of decision, could hardly fail to appreciate the necessity for an appropriate warning.

In the instant case I can see no reasonable ground on which the judge could properly reject the conclusion to which the unchallenged medical evidence led in the application of the Bolam test. The trial judge’s assessment of the risk at 1% or 2% covered both nerve root and spinal cord damage and covered a spectrum of possible ill-effects ‘ranging from the mild to the catastrophic’. In so far as it is possible and appropriate to measure such risks in percentage terms (some of the expert medical witnesses called expressed a marked and understandable reluctance to do so), the risk of damage to the spinal cord of such severity as the appellant in fact suffered was, it would appear, certainly less than 1%. But there is no yardstick either in the judge’s findings or in the evidence to measure what fraction of 1 % that risk represented. In these circumstances, the appellant’s expert witness’s agreement that the non-disclosure of neuro-surgical opinion afforded the respondents a complete defence to the appellant’s claim.

LORD SCARMAN: … The issue is whether Mr Falconer failed to exercise due care (this was not challenged) in the advice which he gave his patient when recommending an operation; I use the word ‘advice’ to cover information as to risk and the options of alternative treatment. Whatever be the correct formulation of the applicable law, the issue cannot be settled positively for or against the doctor without knowing what advice, including any warning of inherent risk in the operation, he gave his patient before she decided to undergo it and what was his assessment of the mental, emotional and physical state of his patient. The trial judge derived no help on these two vital matters from the evidence of the appellant. Mr Falconer was not an available witness, having died before trial, and the medical records afforded no sure guide on either matter. Regrettable though a ‘non-proven’ verdict is, it is not, therefore, surprising. Where the court lacks direct evidence as to the nature and extent of the advice and warning (if any) given by the doctor and as to his assessment of his patient the court may well have to conclude that the patient has failed to prove her case.

This lack of evidence is unsatisfactory also from a purely legal point of view. I am satisfied, for reasons which I shall develop, that the trial judge and the Court of Appeal erred in law in holding that, in a case where the alleged negligence is a failure to warn the patient of a risk inherent in the treatment proposed, the Bolam test, (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) ... is to be applied. In my view the question whether or not the omission to warn constitutes a breach of the doctor’s duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant consideration[s], but by the court’s view whether the doctor in advising his patient gave, the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes. This being my view of the law, I have tested the facts found by the trial judge by what I believe to be the correct legal criterion. In my view the appellant has failed to prove that Mr Falconer was in breach of the duty of care which he owed to her in omitting to disclose the risk which the trial judge found as a fact he did not disclose to her.

[Was the judge in Bolam] correct in treating the ‘standard of competent professional opinion’ as the criterion in determining whether a doctor is under a duty to warn his patient of the risk, or risks, inherent in the treatment which he recommends? Skinner J and the Court of Appeal have in the instant case held that [he] was correct. Bristow J adopted the same criterion in Chauerton v Gerson [1981] 1 All ER 257; [1981] QB 432. The implications of this view of the law are disturbing. It leaves the determination of a legal duty to the judgment of doctors. Responsible medical judgment may, indeed, provide the law with an acceptable standard in determining whether a doctor in diagnosis or treatment has complied with his duty. But is it right that medical judgment should determine whether there exists a duty to warn of risk and its scope? It would be a strange conclusion if the courts should be led to conclude that our law, which undoubtedly recognises a right in the patient to decide whether he will accept or reject the treatment proposed, should permit the doctors to determine whether and in what circumstances a duty arises requiring the doctor to warn his patient of the risks inherent in the treatment which he proposes.

The right of ‘self-determination’, the description applied by some to what is no more and no less than the right of a patient to determine for himself whether he will or will not accept the doctor’s advice, is vividly illustrated where the treatment recommended is surgery. A doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault. The existence of the patient’s right to make his own decision, which may be seen as a basic human right protected by the common law, is the reason why a doctrine embodying a right of the patient to be informed of the risks of surgical treatment has been developed in some jurisdictions in the United States of America and has found favour with the Supreme Court of Canada. Known as the ‘doctrine of informed consent’, it amounts to this:

where there is a ‘real’ or a ‘material’ risk inherent in the proposed operation (however competently and skilfully performed) the question whether and to what extent a patient should be warned before he gives his consent is to be answered not by reference to medical practice but by accepting as a matter of law that, subject to all proper exceptions (of which the court, not the profession, is the judge), a patient has a right to be informed of the risks inherent in the treatment which is proposed. 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.

In a medical negligence case where the issue is as to the advice and information given to the patient as to the treatment proposed, the available options and the risk, the court is concerned primarily with a patient’s right. The doctor’s duty arises from his patient’s rights. If one considers the scope of the doctor’s duty by beginning with the right of the patient to make his own decision whether he will or will not undergo the treatment proposed, the right to be informed of significant risk and the doctor’s corresponding duty are easy to understand, for the proper implementation of the right requires that the doctor be under a duty to inform his patient of the material risks inherent in the treatment. And it is plainly right that a doctor may avoid liability for failure to warn of a material risk if he can show that he reasonably believed that communication to the patient of the existence of the risk would be detrimental to the health (including, of course, the mental health) of his patient.

My conclusion as to the law is therefore this. To the extent that I have indicated, I think that English law must recognise a duty of the doctor to warn his patient of’ risk inherent in the treatment which he is proposing; and especially so if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case, the court is satisfied that a reasonable person in the patient’s position would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if on a reasonable assessment of his patient’s condition he takes the view that a warning would be detrimental to his patient’s health.

[Having applied the principles in his speech, LORD SCARMAN was in favour of dismissing the appeal.]

[LORD KEITH OF KINKEL agreed with LORD BRIDGE OF HARWICH. LORD DIPLOCK and LORD TEMPLEMAN delivered speeches in favour of dismissing the appeal.]

Appeal dismissed.

Addendum 2

Extracts from Bolitho v City and Hackney Health Authority House of Lords [1998] AC 232

LORD BROWNE-WILKINSON: ... The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill or competence is the direction to the jury given by McNairJ in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587:

‘I myself would prefer to put it this way: a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.’

My Lords, I agree with [leading counsel for the appellant’s] submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In Bolam’s case [1957] 1 WLR 583 at 587 McNair J stated that the defendant had to have acted in accordance with the practice accepted as proper by a ‘responsible body of medical men’ (my emphasis). Later he referred to ‘a standard of practice recognised as proper by a competent reasonable body of opinion’ (see [1957] 1 WLR 583 at 588; my emphasis). Again, in Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 at 639, Lord Scarman refers to a ‘respectable’ body of professional opinion. The use of these adjectives — responsible, reasonable and respectable — all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of Opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of Comparative risks and benefits and have reached a defensible conclusion on the matter.

There are decisions which demonstrate that the judge is entitled to approach expert professional opinion on this basis. For example, in Hucks v Cole (1968) (1993) 4 Med LR 393, a doctor failed to treat with penicillin a patient who was suffering from septic places on her skin though he knew them to contain organisms capable of leading to puerperal fever. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. The Court of Appeal found the defendant to have been negligent. Sachs U said (at 397):

‘When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risks, the court must anxiously examine that lacuna — particularly if the risks can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas ...‘

Again, in Edward Wong Finance Co Ltd v Johnson Stokes & Master (a finn) [1984] AC 296, [1984] 2 WLR 1, the defendant’s solicitors had conducted the completion of a mortgage transaction in ‘Hong Kong style’ rather than in the old-fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This practice opened the gateway through which a dishonest solicitor for the borrower absconded with the loan money without providing the security documents for such loan. The Privy Council held that even though completion in Hong Kong style was almost universally adopted in Hong Kong and was therefore in accordance with a body of professional opinion there, the defendant’s solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible.

These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied on is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that, in my view, it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As ... Lord Scarman makes clear [in Maynard’s case] it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls

[His Lordship then concluded that this was plainly not ‘one of those rare cases’.]

[LORD SLYNN OF HADLEY delivered a speech in which he agreed with LORD BROWNE--WILKINSON’S analysis of the question to be decided in this sort of case and of the correct approach in law to them. LORD NOLAN, LORD HOFFMANN and LORD CLYDE agreed with LORD BROWNE-WILKINSON’S speech.]

Notes to Cases 50-56

1. These cases illustrate certain problems that German law discusses under the headings of ‘unlawfulness’ and culpa (very loosely translatable as fault). Their theoretical treatment has been sketched above (Ch. 2, section A.3) but it is, again, at the level of concrete cases and specific issues that concept is concretized and the similarities become obvious and any comparison with the Common law becomes meaningful. A number of points call for special comment.

2. The standard of care expected of the defendant is discussed in cases 50 and 51. In case 50 (RGZ 119, 397) the plaintiff’s claim failed because he himself knew that the defendant was not fully competent. A second reason why the claim failed can be traced in the facts as found by the lower courts: the accident would have occurred even if the defendant had been properly qualified. In other words, the defendant’s negligence is not even a condition (let alone a legal cause) of the harm. (See Ch. 2, section A.5 (a), and English cases cited there.) But the importance of the judgment is in its second half where (as in case 51) it is stated that the standard of care will be determined objectively by reference to the behaviour of the reasonable man. Here, the basic idea is the same in American, English, and French law, though many formulations have been proposed and the terminology is slightly different. (The Common law searches for the behaviour of the ‘reasonable man’ who, in the context of the tort of defamation, becomes the ‘ordinary man’ in order to accommodate a certain amount of loose thinking (note that in these days of proclaimed sex equality lawyers have still to introduce the notion of the ‘reasonable woman’), while the civil law systems refer to the ‘bonus pater familias’.) In practice, however, these are merely expressions of the anthropomorphic conception of justice as perceived by judges and/or juries.

Numerous statements can be quoted showing that no legal system expects the behaviour of the model citizen who is the paragon of all true virtue. Equally, however, no system is prepared to countenance the attitudes of the most callous, timorous, or indecisive members of its society. As Harper, James Jr., and Gray put it (The Law of Torts 2nd edn. (1986) 389–90): ‘As everyone knows, this reasonable person [sic] is a creature of the law’s imagination. He is an abstraction. He has long been the subject of homely phrase and witty epigram.’ (Equally, however, courts have applied the ordinary standards of care even to persons of exceptional skill and perception, Fredericks v. Castora, 241 Pa. Super. 211, 360 A. 2d 696, (1976).) In Hall v. Brooklands Club [1933] 1 KB 205, 224, Greer LJ stressed the need to remain in touch with the average community standards when he described the reasonable man as ‘“the man in the street” or “the man in the Clapham omnibus”, or, as I recently read in an American author, “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves”’. However, the reader must also take note of the clear trend discernible in all systems to raise standards in an effort to keep abreast with the quicker tempo and increased hazards of modern life. Thus, in certain areas of tort law—notably traffic accidents that account for a major part of litigation in all advanced legal systems—the presence of obligatory insurance may be the reason of an almost complete equation of negligence with near-strict liability. Case 51 (BGH JZ 1968, 103) is a good illustration of this tendency and one can find even clearer examples in French (Grenoble, 4 décembre 1978, JCP 1980, II, 19340) and English law (Roberts v. Ramsbottom [1980] 1 WLR 823). In the latter case the English court held ‘negligent’ a 75-year-old man who had a stroke a few minutes before setting off on a drive that was to lead to a series of accidents culminating in his being taken to hospital where his brain haemorrhage (of which he had had no previous forewarning) was finally discovered. In the court’s view nothing less than a complete loss of consciousness would have sufficed to exculpate him from liability. (Cf. Breunig v. American Family Insurance Co., 173 NW 2d 619 (1970): defendant lost control of her car believing that God had taken control of the steering wheel. He had not, and the plaintiff was injured. The plea of insanity was rejected and defendant was held liable.) Other cases like Henderson v. Jenkins [1970] AC 282 (car brakes defective due to an undiscoverable hidden defect which led to an accident) and Nettleship v. Weston [1971] 2 QB 691 (learner-driver held to be ‘negligent’ for failing to attain the standard of competence of an experienced driver; likewise with American law: Gregory et al., 152) lend credence to theories which attempt to ascribe such perversions of traditional concepts to modern insurance practice. (In this sense B. S. Markesinis, ‘La Perversion des notions de responsabilité civile délictuelle par la pratique de l’assurance’ (1983) Rev. int. dr. comp. 301.) In America standards have also been dramatically raised in cases involving children causing accidents while engaged in ‘adult activities’. Dellwo v. Pearson, 259 Minn. 452, 107 NW 2d 859 (1961) is such a case and has proved particularly influential in automobile cases. See Prichard v. Veterans Cab. Co., 63 Cal. 2d 727, 408 P. 2d 360 (1965); also Henderson and Pearson, 363–4 with further references. Children are judged by adult standards when they are defendants. By what standards should they be judged when they are the plaintiffs and a question of contributory negligence arises? See Reiszel v. Fontana, 35 AD 2d 74, 312 NYS 2d 988 (1970).

3. For fuller discussions of American law see Franklin, 43 ff.; Henderson and Pearson, 319 ff.; Epstein, 129 ff.; Franklin and Rabin, 31ff; Prosser, et al., 137 ff. For England see Clerk and Lindsell on Torts, 18th edn. 4-55ff (for children) and 7-159ff for a more general But detailed) discussion of the expected standard of care. The impact of modern insurance on the modern law of torts has been the subject of an excellent dissertation by Professor Viney of the University of Paris in the mid-sixties (Le déclin de la responsabilité individuelle (1965)). The theme is taken up again in her most recent treatise on the subject, Traité de droit civil (ed. J. Ghestin IV), Introduction à la Responsabilité 2nd ed (1995). Finally, for an excellent comparative discussion of the notion of fault and the changed attitudes towards it see Tunc, La responsabilité civile (1981).

4. Case 53, BGHZ 29, 46, (and, indeed, case 99, BGH NJW 1959, 1106, below) touches upon one of the most troublesome aspects of medical malpractice law—a topic which has generated heated debates and lends itself for inclusion in courses on advanced torts. The early American literature can be found in such works as Wadlington, Waltz, and Dworkin, Cases and Materials on Law and Medicine (1980), and Curran and Shapiro, Law, Medicine and Forensic Science (3rd edn. 1982). Making Health Care Decisions, President’s Commission for the Study of Ethical Problems in Medicine, US Government Publishing Office (1982) is a three-volume report full of useful information on the subject. Comment to Medical Care is the title of an interesting study published by the Law Reform Commission of Canada in 1980. English law, woke up to these problems later; and this belated interest was first captured by Margaret Brazier’s Medicine, Patients and the Law, now in its 2nd edn. (1992) provides a most readable introduction to the whole subject. Mason and McCall-Smith’s Law and Medical Ethics 5th ed. (1999) gives a good summary (at 140–59), on the whole, supportive of the current rather conservative approach of the English courts. By contrast Ian Kennedy’s stimulating Note in 47 MLR 454 (1984) is critical of this attitude. (See also Kennedy’s excellent essays collected under the title Treat Me Right (1988).) Well worth reading also is Robertson’s ‘Informed Consent to Medical Treatment’ 97 LQR 102 (1981) and Andrew Grubb’s ‘A Survey of Medical Malpractice Law in England: Crisis? What Crisis?’, 1 Journ. of Contemporary Health Law and Policy 75 ff. (esp. 93–111) (1985). For a comparative study of English and American law on this point see: Schwartz and Grubb, ‘Why Britain Can’t Afford Informed Consent’, 15 Hastings Center Report (1985); for Anglo-German law see Shaw, ‘Informed Consent: A German Lesson’, 35 ICLQ 864 (1986). Kennedy and Grubb’s Principles of Medical Law (1998) is now the main treatise on English law but is also replete with references to other Common law jurisdictions. The subject is also discussed in the growing books on professional negligence.

5. Lawful consent is required for otherwise the interference with the patient’s body would be ‘unlawful’ according to the view taken by German case-law (contra Laufs in NJW 1969, 529 arguing that in this case the doctor’s conduct is not objectively aimed at ‘injuring’ the body but as ‘curing’ and that, therefore, § 823 I BGB is inapplicable). Unlike the English Common law, which expects the patient to prove non-disclosure, German law casts on to the doctor the burden of proving the patient’s consent. (Deutsch, Arztrecht und Arzneimittelrecht, 2nd edn. (1991) 39.) The action will, typically, be based on § 823 I BGB. In the Common law systems on the other hand total absence of consent or fraudulently obtained consent will justify an action in battery. In practice, however, negligence actions are much more common than trespass to the person because: (i) the rules on limitation and causation in trespass are thought to be too oppressive to defendant/doctors and (ii) intentional torts are usually not covered by insurance. See Cobbs v. Grant, 8 Cal. 3d 229, 502 P. 2d 1 (1972); likewise in England, though see Freeman v. Home Office [1983] 3 All ER 589. Consent is thus crucial, but the problems it raises are far from solved. One could, perhaps, categorize the cases into three groups.

The first includes situations where the answers are reasonably clear. For example, in the case of an infant or a young child consent must come from those responsible for his care (usually the parents) §§ 1626, 1631 BGB (Germany); Zoski v. Gaines 271 Mich. 1, 260 NW 99 (1935) (USA); S. v. McC.; W. v. W. [1972] AC 29, 37 (per Lord Hodson) (England). Older children, mature enough to understand the implications of their consent, are free to give it themselves: Lacey v. Laird 166 Ohio St. 12, 139 NE 2d 25 (1956) (USA); BGHZ 29, 37 (Germany); Family Law Reform Act 1969, § 8 (16 years) (England). On this see Skegg in 36 MLR 370 (1973) and [1969] Recent Law 295 (NZ). An operation on an unconscious adult will usually be defended on the grounds of necessity.

A second group of cases are controversial (and have this in common with the next group); but they also deal with problems which are relatively new to medical science and social life in general. For example, whose consent is necessary for the prescription of a contraceptive pill: parent’s or child’s? In Gillick v. West Norfolk and Wisbech Area Health Authority the Court of Appeal ruled that no contraceptive, abortion advice, or treatment could be given to a girl under 16 years of age without her parents’ consent save in a case of an emergency or after a court order (The Times 21 December 1984) but the decision was overruled by the House of Lords by a three to two majority: [1985] 3 All ER 402; [1986] AC 112 discussed by Professor Glanville Williams in 1985 New Law Journal pp. 1156 ff.; Kennedy, ‘The Doctor, the Pill, and the Fifteen-Year-Old-Girl’ in Treat Me Right (1988) 52 ff. Transplant surgery can also raise nice problems. See, for example, Hart v. Brown, 29 Conn. Supp. 368, 289 A. 2d 386 (1972).

Two related issues have also occupied modern courts and received similar answers. The first is connected with abortion and the father’s ‘rights’ or ‘interests’. Can he seek an injunction—acting in his own right or on behalf of the foetus—and prevent the mother from aborting? (If the foetus were viable, the father’s action could also be seen as attempting to prevent the commission of a crime.) Two courts—in Paton v. British Pregnancy Advisory Service [1979] 276, involving an action by a husband, and in C. v. S. [1987] 1 All ER 1230, involving an action by the boyfriend of the mother—have shown a marked reluctance to challenge a medical decision, properly reached, about an abortion; and, in general, would prefer to leave it to the criminal law to challenge the legality of such a decision in the criminal courts where a jury would make the decision and not a judge sitting alone. The European Commission on Human Rights agreed, 3 EHRR 410 (1980).

What of a girl under age who wishes to have an abortion? Is her parents’ consent necessary? The answer would appear to be negative so long as the girl is mature enough to understand what is being proposed: Re P. (a Minor) (1981) 80 LGR 301. In some systems statutes have made it clear that such consent can be given after the age of sixteen. (England: Family Law Reform Act 969, s.8; Australia: Minors (Contracts and Property) Act 1970; New Zealand: Guardianship Act 1968.) But if the law appears to be settled, the ethical controversies are unlikely to end that easily. See Kennedy, ‘A Husband, a Wife, and an Abortion’, in Treat Me Right (1988) 42 ff.

The third group of cases deals with what is, perhaps, the thorniest aspect of the problem of consent—what exactly need be disclosed for consent to be valid? ‘Medicine’, wrote an international expert on this subject, ‘is a discipline which is enriched by . . . joint international contribution. . . . The same is true of the law governing medical practice.’ (Giesen and Hayes, ‘The Patient’s Right to Know—A Comparative View’ (1992) 21 Anglo-American L.R. 101–22. See also, Giesen, ‘Zwischen Patientenwohl und Patientenwille’, JZ 1987, 282). Judicial decisions from both Canada and, especially, the antipodes, confirm the accuracy of the statement and the value of the method, so the summary that follows is comparative in nature and not focused on one system in particular.

To the question of how much information must be disclosed to the patient before his consent to medical treatment can be legally valid three answers are possible. The first, basically, leaves the decision to ‘a responsible body of medical men skilled in that particular art.’ This is known as the Bolam test from the leading English case of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 and is the most paternalistic in nature. This test was, essentially, re-affirmed by four out of five law lords in Sidaway v. Royal Bethlem Hospital Governors [1985] 1 AC 871. (Reproduced in part as Addendum 1 above.). Lord Scarman dissented in favour of the doctrine of informed consent. Though three of the judges (Lords Bridge, Keith and Templeman) made comments which have encouraged those who believe that English law is too indifferent to the patients’ interests, the tone of the judgment was set by Lord Diplock who insisted that medical opinion remained ‘determinative’ in such matters. This can be seen by the next important case—Gold v. Haringey Area Health Authority [1988] QB 481 where the Court of Appeal overruled a more pro-plaintiff judgment by Schiemann J. ([1987] 1 FLR 125) by insisting that ‘the Judge was not free, as he thought, to form his own view of what warning and information ought to have been given, irrespective of any body of responsible medical opinion to the contrary.’ (Per Lloyd LJ at p. 490.) One reason why English law takes such a conservative view was given by Lord Denning in Whitehouse v. Jordan [1980] 1 All ER 650, 658, and is connected with the fear of increased malpractice litigation. However, such statistics as do exist in America and Germany do not seem to support this fear and further empirical studies are needed before a conclusive view can be expressed. Decisions such as Bolitho would suggest that a shift of emphasis is taking place even in English law; and the new Human Rights Act (and growing “rights” culture) can only accelerate this move towards a more balanced view of the patient’s rights and the doctor’s obligations. (See, also, Addendum 2 containing extracts from Bolitho v. City and Hackney Health Authority [1998] AC 232.)

This English position is rejected by most Common law jurisdictions which adopt the so-called doctrine of ‘informed consent’ taking the view that the doctor must disclose as much information as a reasonable patient would require to make an informed choice and frequently add, for good measure, that the doctor ‘should not lightly make the judgment that the patient does not wish to be fully informed.’ This last quotation comes from the leading Australian case of F. v. R. (1983) 33 SASR 189, 193; and the same ideas are, essentially, found in many American jurisdictions (for example Canterbury v. Spence, 464 F 2d 772 (1972); Crain v. Allison, 443 A. d 558 (1982)) and Canada (Reibl v. Hughes [1980] 2 SCR 880; White v. Turner 120 DLR 3d 269). Both these positions have been rejected by many decisions of Continental European systems on the grounds that they violate the patient’s right of self-determination. (Rich references to French, German, and Swiss law are given by Giesen and Hayes, op. cit., above, in notes 70–72; and the whole matter is exhaustively considered by Giesen in International Medical Malpractice Law (1988). For details on French law see: Guillot, Le Consentement éclaire du patient: autodétermination ou paternalism (1986).) This position has, as stated, been forcefully stressed by German courts which, in the light of the recent past, have been only too conscious of the dangers of ignoring human dignity and not preventing unwarranted medical interferences with the body and health of human beings. Thus, from the beginning of the post-War period, courts have stressed that ‘proper respect for the patient’s right of self determination will further rather than damage the patient’s trust in his doctor’ and ‘to respect the patient’s own will is to respect his freedom and dignity as a human being.’ (BGHZ 29, 46, 53–56. See, also, BGHZ 90, 96; 90, 103.) Thus, the principle of full disclosure is repeatedly stressed (see BGH VersR 1980, 428, 429; NJW 1984, 1397); and in one case, involving diagnostic treatment, the court took the view that even a 0.5 per cent chance of a particular risk occurring should be disclosed (OLG Hamm VersR 1981, 68). In the case of therapeutic operations disclosure will be geared to the patient’s individual circumstance such as his level of understanding (BGH NJW 1980, 633) and even the attending doctor’s degree of experience (OLG Köln VersR 1982, 453). The urgency of the situation is also a factor that can be taken into account (BGH VersR 1972, 153); and even the defence of ‘therapeutic privilege’ (no revelation of risks since patient might not be able to ‘handle’ adverse news) has been treated with caution, as a decision of the BGH of 28 November 1957 clearly shows. (BGHSt 11, 111, 114 and compare similar statements in Meyer Estate v. Rogers (1991) 6 CCLT 2d 114.) Beyond stating the above general, guiding principles, one must advise the reader to consult particular instances where the courts have applied them to different factual situations. The following are recent illustrations. (See for details Staudinger-Hagen, 13th edn. (1999), § 823 section I, no. 76-133.

(i) A patient must, as a general rule, be warned of the possibility of stiffening of the shoulders as a result of an injection containing cortisone, even if this is a very slight risk; but he need not be informed of the remote danger of fatal sepsis: BGH NJW 1989, 1533.

(ii) A doctor who wishes to undertake a vaginal delivery, even though the danger to mother and child dictates a caesarian operation, has a duty to warn the expecting mother of the accompanying risks. If the doctor maintains that the expecting mother refused a caesarian section, he has the burden of proving that he furnished her with the required warning: BGH NJW 1992, 741.

(iii) If a doctor fails to provide the patient with the required information concerning the nature and the difficulty of an operation, he is not free from liability merely because the harm which actually occurs is not one against which the doctor was obliged to warn: BGH NJW 1991, 2346.

(iv) Before performing cosmetic surgery a doctor must inform the patient especially carefully and thoroughly of the odds of the operation failing to produce the desired results (in this case removing wrinkles under the chin): BGH NJW 1991, 2349. Properly informing a patient about an operation entails explaining to him the urgency of such an operation.

(v) The doctor has the burden of proving that he provided a thorough and accurate explanation: BGH NJW 1990, 2928. In more recent decisions the BGH has continued this trend and emphasised repeatedly the patient’s right to self-determination.

(vi) Thus, in BGH NJW 1996, 776, case 54, the court held that where a number of alternative methods of treatment were available, it was not enough to inform the patient only about the orthodox and established methods. Even if a new method has not yet been fully worked out (in the instant case it could have avoided the risk of thrombosis) it must still be brought to the attention of the patient so long as some experts regard it as a serious and appropriate treatment. The decisive criterion in determining the scope of the duty to inform is thus giving the patient all the necessary information to make an informed choice for, in the end, it is the patient who will have to bear the consequences (see Giesen JZ 1996, 519 with further references).

(vii) A more restrictive approach was adopted in BGH NJW 2000, 1784, case 55, (note by Deutsch JZ 2000, 902). This case, involving a routine vaccination (against polio), raised two interesting points. First the plaintiff submitted that the defendant was liable. For though the risk which materialised had been brought to the attention of the patient, other risks, which should also have been mentioned, had not mentioned to him. The BGH denied liability on the basis that the patient gave his consent knowing about the risk that did in fact materialize. Whether or not he would have not given his consent had he been informed of the other risks was a matter for speculation and could not be taken into account in the instant case. The second aspect concerns the question whether it was sufficient that the information about the risk was in written form and the patient was given the opportunity to clarify doubts in a personal conversation with the doctor. It was held that such an (informal) procedure was adequate at least as far as routine measures were concerned. Finally, it is interesting to note that German courts are not impressed by the statistical probability of a certain risk, a point also confirmed in the decision in question.

(viii) Whether the risk is regarded as material depends on the circumstances of the individual case, the nature of the treatment, the seriousness of the risk. Overall, these decisions demonstrate that German courts have succeeded in striking a workable balance between the patient’s right to self-determination and the need to control in a reasonable way the extent of medical liability so that the profession is not unduly burdened by excessive costs. (For further discussion of these topics see: Deutsch, NJW 1980, 1305; idem, NJW 1984, 1802; Laufs and Kern, JZ 1984, 631. More detailed discussions can also be found in the standard treatises written by Professor Deutsch, Medizinrecht - Arztrecht, Arzneimittelrecht und Medizinprodukterecht, 4th edn. (1999); and Professor Giesen, Arzthaftungsrecht, 4th edn. (1995).)

One further point related with informed consent which has troubled the courts of many systems is linked to the problem of causation that arises in such cases. For, once it has been decided that inadequate information has been given to the patient, the next point that arises is whether had there been proper disclosure this particular patient would have gone ahead with the proposed medical treatment. Once again, the doubt has centred as to how this question should be answered: objectively, by discovering the reaction of the hypothetical, reasonable man? Or by finding how this particular patient would have reacted. It would be impossible to deny that the question does not lend itself to an easy answer. Equally, however, it is noteworthy that despite the dangers of self-serving evidence (which arise if the test is to be subjective) many courts have adopted it as the right criterion. Thus see: New Zealand: Smith v. Auckland Hospital Board [1964] NZLR 191 CA; Australia: Ellis v. Wallsend District Hospital (1989) 17 NSWLR 553, 560; Rogers v. Whittacker (1991) 23 NSWLR 601; Germany: BGHZ 90, 103, 111, 112; BGHZ 90, 96, 101, 102. Indeed, German courts have tried to counter the argument that patients may, with hindsight, attempt to manipulate the evidence so they insist that it is for the patient to substantiate his allegation that he would not have consented to the operation even if properly informed ‘in those [cases] where the reasons adduced [by the patient] for refusing treatment are not altogether comprehensible in the light of the specific facts of the case.’ In other words, in such cases it is for the patient to come up with plausible reasons for refusing the treatment had he known the risks in advance.

6. Non therapeutic treatments – such sterilisation operations – have been particularly controversial. In some systems – e.g. Australia (Secretary, Dept. of Health v. JWB (1992) CLR 218 – they require a court order. In other systems – e.g. Canada Re Eve [1986] 2 SCR 388 – even a court order is insufficient. In England, a court order seems to be deemed desirable but not essential. In re F (Mental Patient) [1990] 2 AC 1. The legal outcome may be more controversial depending upon whether the person that is about to be sterilised is a minor, an adult, or an adult of diminished intellectual abilities. The irreversible nature of the operation makes the decision that much more sensitive.

7. German law recognizes in § 227 BGB the privilege of self-defence against persons (Notwehr) and against things (Notstand). In § 228 BGB it also recognizes (in certain circumstances) the right of a person to interfere with objects which belong to another person and from which the danger emanates (§ 904 BGB) in order to prevent harm to his own interests or those of others. Where this is the case the ‘unlawfulness’ of the act disappears and the actor cannot be sued under § 823 I BGB. We are here talking of situations which have exact counterparts in the Common law. See, for example, Fleming, 78–80, 90–2; and Prosser and Keaton, 124 ff.

Case 56, BGH NJW 1975, 1161, however, attempts to put the privilege of self-defence to a novel use and the dislike of the legal order for self-help is clearly shown in the judgment of the German court. Compare in this respect § 140 of the Restatement Second, Torts, which also states that there will be no privilege to use force to prevent the commission of a misdemeanour.

Problems not dissimilar to those faced by the court in the above case have arisen in the US in the context of occupations of nuclear plants by nuclear protestors, but the defence of ‘competing harms’ raised by the intruders has met with the same fate. An interesting case with such facts is Commonwealth v. Bregman, 13 Mass. App. Ct. 373, 433 NE 2d 457 (1982).

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