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The principal issue in this case relates to the scope and content of the appellant’s duty of care. Appellant’s failure to advise and warn the respondent of the risks and inherent in the operation constitute a breach of this duty.
3. Summarize ratio decided of the High Court decision by reference only to the joint judgment.
The joint judgments of the majority of the court stated:
‘The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege. ’ 7
So in the field of non-disclosure or risk and the provision of advice and information, the Bolam principle has been discarded. And, instead, the courts have adopted the principle that, while evidence of acceptable medical practice standard of care courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to “the paramount consideration that a person is entitled to make his own decisions about his life”. 8
4. Why did Gaudron J’s views differ from those set out in the joint judgment?
Gaudron J’s views differ in the joint judgment. Actually, she agrees with other judge’s conclusion that the appeal should be dismissed. But she have qualm about define of “single comprehensive duty”.9
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; 10 it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.11 It is of course necessary to give content to the duty in the given case.
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