Private Law Theory

Introduction:
On February 21 1985, clinical negligence lawyers, both claimant and defence, could be forgiven for feeling slightly confused by the judgment of the House of Lords (as it then was) in the infamous case of Sidaway. All things considered, though, medical defence lawyers probably felt more at ease with the decision than their claimant counterparts. Despite a meagre and somewhat confusing attempt by Lord Bridge (with whom Lord Keith agreed) to restrict the ambit of the Bolam test in respect of preoperative medical information, the legal standard of disclosure was still principally governed by the commonly accepted practice of the medical profession.

Nineteen years later, on October 14 2004, a sea change began to take shape. In Chester v Afshar, their Lordships saw fit to depart from the traditional rules of causation to allow the patient to recover damages when, on conventional but for principles, she should not have been entitled to succeed … (more)

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Rob Heywood, RIP Sidaway: Patient-Oriented Disclosure – A Standard Worth Waiting For? Montgomery v Lanarkshire Health Board [2015] UKSC 11. Medical Law Review (2015), doi: 10.1093/medlaw/fwv024. First published online: May 28, 2015.

First posted 2015-06-03 06:48:04