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20.15.2 Reasonableness of the decision and information available to the client


Nevertheless what the delegate must determine is the reasonableness of the client's decision, i.e. given the information available to that client at the time. An expert medical consensus supporting the wisdom and relatively low risk of the treatment is irrelevant if that opinion is presented only after the client's decision not to proceed. Therefore, where the client has not been advised of all 'cogent factors' favouring a particular course of treatment, a refusal of that treatment should not be considered 'unreasonable'.

This issue was also considered in the Fazlic case (see 20.15.1) where the Court observed:

'Any assessment of the reasonableness or otherwise of a worker's refusal of treatment must depend upon the worker's state of knowledge at the relevant time. This accords both with good sense and with authority. A worker's choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed.....

.....A court is not, except in exceptional circumstances to be mentioned hereafter, concerned with what in Tutton's Case Cozens-Hardy MR described as the question whether, on the balance of medical evidence, the operation may reasonably be performed on the worker. Its concern is, rather, with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable.

It follows that in the present case the extensive expert medical testimony showing that the operation might reasonably have been performed was irrelevant to the point in issue, the reasonableness of the appellant's refusal, since the facts deposed to were never known to the appellant, who was aware only of the treating surgeon's reticent and, if anything, rather discouraging statement about the operation that was recommended. Moreover the applicant had candidly confessed to his treating surgeon his fears regarding the operation and nothing had been said to dispel them. In those circumstances we cannot say that he was shown to have been unreasonable in refusing the operation and this despite the fact that the alternative facing the appellant was, as he had been told, that there would be no improvement in his condition.'

It follows that in most cases, a client who is fully informed about 'cogent factors' favouring the undergoing of a medically recommended, high benefit and low risk treatment may be 'unreasonable' to refuse it. This is the default position from which a delegate would start an investigation into continued entitlement to weekly payments. Nevertheless, delegates must judge each case on its individual merits, i.e. given all the circumstances and after consideration of the exceptions identified on the next page.