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Hills v Potter(1984): It is not necessary for ‘real’ consent that the
risks associated with a procedure be disclosed
Facts
The plaintiff was operated on to relieve the spasmodic torticollis affecting her neck.
Following the operation, the patient was left paralysed. The plaintiff alleged that,Consent and Information Disclosure 21
because of the defendant’s failure to inform of the risks, her consent to the operation
was not ‘real or effective’ and the operation was a battery.
Decision
The High Court held that the plaintiff’s consent was ‘real’ and the operation was not a
battery. The plaintiff’s claim in negligence also failed.
Comment
Hirst J stated: ‘I should add that I respectfully agree with Bristow J [Chatterton v
Gerson] in deploring reliance on these torts in medical cases of these kind; the proper
cause of action, if any, is negligence.’ His comment shows how reluctant the courts are
to find a doctor liable for battery; hence the sometimes strained reasoning that can be
found (see Davis v Barking, Havering and Brentwood HA(1993) (below)). The House
of Lords in Sidaway(1985) (see 2.4 below) confirmed that risk disclosure is relevant to
negligence liability rather than battery: ‘I conclude, therefore, that there is room in our
law for a legal duty to warn a patient of the risks inherent in the treatment proposed,
and that, if such a duty be held to exist, its proper place is as an aspect of the duty of
care owed by the doctor to his patient’, perLord Scarman.
risks associated with a procedure be disclosed
Facts
The plaintiff was operated on to relieve the spasmodic torticollis affecting her neck.
Following the operation, the patient was left paralysed. The plaintiff alleged that,Consent and Information Disclosure 21
because of the defendant’s failure to inform of the risks, her consent to the operation
was not ‘real or effective’ and the operation was a battery.
Decision
The High Court held that the plaintiff’s consent was ‘real’ and the operation was not a
battery. The plaintiff’s claim in negligence also failed.
Comment
Hirst J stated: ‘I should add that I respectfully agree with Bristow J [Chatterton v
Gerson] in deploring reliance on these torts in medical cases of these kind; the proper
cause of action, if any, is negligence.’ His comment shows how reluctant the courts are
to find a doctor liable for battery; hence the sometimes strained reasoning that can be
found (see Davis v Barking, Havering and Brentwood HA(1993) (below)). The House
of Lords in Sidaway(1985) (see 2.4 below) confirmed that risk disclosure is relevant to
negligence liability rather than battery: ‘I conclude, therefore, that there is room in our
law for a legal duty to warn a patient of the risks inherent in the treatment proposed,
and that, if such a duty be held to exist, its proper place is as an aspect of the duty of
care owed by the doctor to his patient’, perLord Scarman.
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