Date: Fri, 15 Oct 2004 19:45:37 +0100

From: Robert Stevens

Subject: Afshar again

With my apologies for boring you all again, I think I had better correct my gut response of yesterday's to Afshar.

The issue (as I said) is the scope of the duty of care. Is the purpose of the duty to warn of the risk merely to provide an opportunity to decide whether to have the operation at all? This is not properly addressed in the speeches. In an article by Professor Honore relied upon by the majority he says:

"The duty of a surgeon to warn of the dangers inherent in an operation is intended to help minimise the risk to the patient. But it is also intended to enable the patient to make an informed choice whether to undergo the treatment recommended and, if so, at whose hands and when."

Is it right that the duty was also to allow her to choose "at whose hands and when"? In Chester v Afshar the patient would not have chosen to have a different surgeon, as far as we know. As the risk would have been the same, so far as we know and she knew, why should she? However, she would have chosen to go ahead at a later point than the surgery was actually performed.

My initial view was that Professor Honore was wrong and that part of the purpose of the duty to warn of the risk was not to enable her to decide when to have the operation. After all, the risk would be precisely the same whenever she had the operation: how could warning her of the risk be relevant to the decision to go ahead now or later?

I now think that my initial view was probably wrong. A subsidiary purpose of the duty to warn is to provide the patient with an opportunity to think things over. "Why don't you sleep on it and see what you feel in the morning." The failure to warn of the risk denied her this period of reflection.

If given the opportunity to reflect she would not have gone ahead with the operation which went so badly wrong. The loss which flowed from the denial of the opportunity to reflect was not purely coincidental to the breach of the surgeon's duty of care. It was within the scope of the duty of care and should have been recoverable.

Time for me to shut up for a bit I think.

Robert Stevens
Barrister
Oxford University

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