A Critique of Chester v Afshar

Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case...

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Bibliographic Details
Published in:Oxford journal of legal studies 2014-12, Vol.34 (4), p.659-692
Main Authors: Clark, Tamsyn, Nolan, Donal
Format: Article
Language:English
Subjects:
Breach of duty
Causation
Civil negligence
Defendants
Duty to warn
Informed consent
Legal consent
Legal liability
Physical trauma
Torts
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Summary:Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam [2013] HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.
ISSN:0143-6503
1464-3820
DOI:10.1093/ojls/gqu019