Clinical negligence - uninformed consent

Clinical negligence - uninformed consent

Although it has always been the case that patients should be properly consented to any treatment or procedure being undertaken, significant legal developments in this area now mean there's a better chance of pursuing a successful claim for uninformed consent.

These developments follow the case of Montgomery v Lanarkshire Health Board [2015].

This claim deals with the issues of uninformed consent and assessment of what information should be provided to patients by medical staff.

Nadine Montgomery is diabetic and gave birth to her son, Sam, in 1998 at Bellshill Maternity Hospital in Lanarkshire. During delivery shoulder dystocia occurred which resulted in Sam being deprived of oxygen and he was born with cerebral palsy.

Diabetic women are known to be more likely to have larger-than-average babies and Mrs. Montgomery is of small build.

Statistics showed that, in these circumstances, about 1 in 10 babies delivered naturally could suffer shoulder dystocia. Shoulder dystocia is the medical term for the baby getting stuck because its shoulders are too wide to pass through the mother's pelvis.

Mrs Montgomery had voiced her fears to her consultant that the baby may be too large for her to have a normal delivery. However, the evidence her doctor gave to the Court was that she did not generally advise diabetic women about the risk of shoulder dystocia, as it was a very small risk (9-10%). Furthermore, the doctor believed that, if warned of the risk, women in that category would invariably choose to have a caesarean section, which she believed was not in the mother's best interests.

Sam's shoulders became stuck during birth and, though the medical personnel were able to free him, the 12 minute delay caused him to suffer oxygen starvation and brain damage. Sam was born with cerebral palsy and paralysis of his arm as a result of the lack of oxygen and force of pulling Sam out.

Mrs. Montgomery's evidence was that, had she been advised of the risks of shoulder dystocia by her doctor, she would have chosen to have her baby by caesarean section. The Health Board accepted that, had Sam been born by caesarean section, he would have been unharmed.

The Supreme Court decided that Mrs Montgomery had the right to be advised of the risk of shoulder dystocia. She also had the right to decide for herself what risks she was prepared to take, relating to the delivery.

Prior to this case before The Supreme Court, reliance by health professionals was made upon the case of Sidaway v Board of Governors of Bethlem Royal Hospital [1985] and a test called the "Bolam" test which is whether the decision not to advise would be supported by a reasonable body of medical opinion.

As a result of this important case, it is no longer appropriate to assess the adequacy of a Doctor's advice or warnings according to the standards of a reasonable medical professional.  The correct approach is whether the patient would attach significance to the risk.

Having regard to Montgomery, The Supreme Court expressed that medical practitioners are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

The test to be applied is whether:

1.  A reasonable person in the patient's position would be likely to attach significance to the risk; or

2. The doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

The clear conclusion of The Supreme Court is that the wishes of the competent patient are paramount and the doctors have a duty to ensure that their patients are sufficiently informed in order to make their decisions. The doctor must not censor information to lead the patient into making the decision that the doctor wants. The doctor should tell their patients about all the risks no matter how apparently immaterial to the doctor, rather than trying to identify those which that patient might consider significant.

The Supreme Court has brought the law into line with longstanding General Medical Council (GMC) Guidance to Doctors on consent. "Good Medical Practice and Consent" is patient-focused in its approach and this is the legal tests which now applies under UK law.

An adult of sound mind is allowed to make decisions about which, if any, of the available methods of treatment to undergo.

That person's consent must be obtained before any treatment interfering with their bodily integrity commences.

Whilst it is important to note that there is no change to the standard which applies in other types of alleged medical negligence such as, for example, failure to diagnose, delay in diagnosis or negligent treatment, so far as the issue of consent is concerned The Supreme Court, in Montgomery, has clarified the law and buried previous doubts that arose in UK courts where the case of Sidaway and Bolam appeared to conflict with later authorities.  The case of Montgomery rules.

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