Whilst only a decision of the High Court, the judgment in Birch v. University College Hospitals NHS Trust [2008] EWHC 2237 represents a novel approach to determining the content of a doctor's duty of disclosure. The claimant suffered a stroke as a result of a cerebral catheter angiogram and brought a claim against the defendant Trust alleging, inter alia, that the decision to pursue this line of invasive treatment instead of an MRI scan was negligent. However, there existed a body of medical opinion which supported the defendant's decision based on the fact that immediate recourse to an angiogram was necessary to rule out an aneurysm, a potentially life threatening condition where time was of the essence. It was held by Cranston J. that the decision to opt for the angiogram was capable of withstanding logical scrutiny and therefore the defendant was not negligent (Bolitho v. City and Hackney HA [1998] A.C. 232). But the claimant succeeded on the basis of an ancillary component of the claim that the defendant did not properly obtain the claimant's consent before undertaking the procedure. The hospital failed to discuss with the patient the different imaging methods of the MRI scan and the angiogram and the comparative risks and benefits associated with each. It was found as fact that had the different treatment options been discussed with the patient she would have opted for the MRI scan and thus avoided her injury.

There has been a significant amount of uncertainty over the years about the precise ambit of a doctor's duty of disclosure and how it is to be judged (Sidaway v. Board of Governors of the Bethlem Royal Hospital and Others [1985] A.C. 871; Pearce v. United Bristol Healthcare NHS Trust (1999) 48 B.M.L.R. 118). However, what is certain is that the focus of the law has been on the risk element of disclosure. Little attention has ever been given to the attendant requirement to disclose alternatives, a facet of the duty which is arguably every bit as important in the quest to protect patient autonomy. Cranston J. admitted in Birch that there is a paucity of authority on this matter (at [74]). In Sidaway Lord Scarman did in fact mention the need to discuss alternatives (at p. 876), but did no more than that. There are also some Canadian and American cases on this issue (Haughian v. Paine (1987) 37 D.L.R. (4th) 624 (Sask CA); Truman v. Thomas (1980) 611 P. 2d. 902 (Cal. Sup. Ct.)). However, Birch is the first English case where the duty to disclose alternative treatments was central to the finding of liability and is an example of a judge being clearly prepared to look beyond the traditional one dimensional focus of the duty of disclosure. There is no reason why doctors should not at least have a legal duty to disclose the reasonably available alternatives to patients and the different risks and benefits associated with each. To this end the decision in Birch is both sensible and correct and the attitude of Cranston J. to negligent disclosure ought to be welcomed.

The ruling does have certain implications for clinical practice. Where two treatment options are available with different levels of risk, it may often be clinicians themselves who decide which course of action to pursue is justified on the grounds of evidence-based practice and which test/procedure provides the optimum outcome for patients in terms of either diagnosis or cure. This is not unreasonable and inevitably the majority of patients will be happily led by the doctor's recommendation, something which, ironically, Mrs Birch admitted (at [80]). However, this exercise of clinical judgment has the danger of fostering medical paternalism particularly if, for example, the real basis for selecting one course of action over another is that it is simply the preferred choice of the medical practitioner. Irrespective of whether or not the test or treatment selected is underpinned by evidence-based practice, medical practitioners need to be aware that the decision in Birch opens up new avenues for patients should something untoward happen as a result of a decision to proceed with a more invasive and riskier procedure where a similar conservative treatment is a realistic option. There is a restriction to this. Cranston J. said there were special circumstances in the case (at [77]). One view of this is that the case only succeeded because there were two options available and, even though one was thought to be slightly more effective than the other at ruling out a potentially serious condition, they both broadly could have reached a similar diagnosis. This, of course, will not always be the case. There may be circumstances where alternative medical procedures differ significantly in terms of what they are intended to achieve and the frequency of their success. In this situation it may well be that the alternative medical procedure is simply not a feasible option and thus it would be inappropriate for the law to hold medical practitioners accountable for failure to disclose it. With this in mind, it is hoped the decision is not construed in a negative way by clinicians. It certainly does not mean that doctors have to disclose every possible alternative treatment and it does not attempt to encroach on the exercise of professional judgment. Doctors may still recommend a particular course of action based on their clinical opinion but it is important to remember that if other treatments are available which are similar but carry less risk then this must be made clear to the patient so that they can decide.

The ruling in Birch also demonstrates the gradual but continuing change in attitude of the judiciary towards autonomy. The House of Lords' decision in Chester v. Afshar [2004] UKHL 41; [2005] 1 A.C. 134 was the first case in which positive moves were made to give greater weight to the duty of disclosure. There exists considerable academic debate as to whether or not the Lords actually did modify the rules of causation in Chester in order to attribute liability (J. Stapleton, ‘Occam's Razor Reveals an Orthodox Basis for Chester v. Afshar’ (2006) 122 L.Q.R. 426). However, what is evident is that the perception of the Lords was that this was what they were doing so as to give teeth to the duty of disclosure and safeguard the patient's right to self-determination. Birch is a further example of a pragmatic approach where a judge has been willing to consider what is fundamentally at stake and how, practically, the law can achieve one of its main aims, namely, the protection of autonomy.