Consent to Treatment Flashcards
Sidaway v Bethlem Royal Hospital
S was not informed of a 1-2% risk of spinal injury, which materialised and left her severely disabled. S claimed that she would not have had the operation had she known this risk.
HL were clear that doctors have a duty to inform patients about the risks of treatment. However, on the facts of this case the doctor was not liable. Reasoning of HL was all quite different:
Lord Scarman took a quite radical patient-focused approach of informed consent. He said the test should be whether a prudent patient, in the claimant’s position, would have wanted to know about the risk.
Lord Diplock stated that there was no reason to distinguish between treatment and diagnosis and so Bolam should simply apply to disclosure of risk.
Lord Templeman, Lord Bridge and Lord Keith in the majority, however, applied a modified Bolam test. They said that disclosure is generally a matter of clinical judgement, but the courts may be able to conclude that the doctor was under a duty even though a responsible body of medical opinion would not have informed P of the risk.
Gold v Haringey HA
CA took surprising interpretation of the HL in Sidaway. CA held that in Sidaway the HL simply applied the Bolam test to the duty to disclose - essentially took the view of Lord Diplock, even though this was not the more nuanced test that the majority seemed to support.
Pearce v United Bristol Healthcare NHS Trust
CA then appeared to shift to the reasonable patient approach more, as set out by Lord Scarman in Sidaway. Lord Woolf MR said that if there was a significant risk which would affect P’s judgement, then normally the doctor should be under a duty to inform P of that risk.
0.1-0.2% risk of still-birth in this case was not a significant risk, so D was not liable.
Chester v Afshar
Lord Steyn approved Lord Woolf’s test in Pearce, and said that P has the right to be informed of “small but well-established” risks of SERIOUS injury.
Birch v UCLH NHS Trust
Courts continued the move away from Sidaway to a rights-based approach. B was informed of a 1% risk of stroke in her treatment, but doctor failed to inform her of a less precise, but risk-free, alternative treatment. D produced an expert witness claiming they would have done the same as the doctor and that the duty was only to inform P of the risks of a particular treatment, not alternatives.
Cranston J held that the doctor was liable for failure to inform P of a reasonable alternative treatment.
Montgomery v Lanarkshire Health Board - FACTS
SC confirmed the shift away from Bolam in disclosure of risk and overruled Sidaway. Facts = M suffered from diabetes and so was more likely to have a large baby. She was informed of this. However, Dr McLellan did not inform her that a large baby increased the risk of shoulder dystocia, whereby the baby is too large to be delivered naturally without medical intervention. M suffered shoulder dystocia (10% risk) and her baby was severely disabled as a result.
Dr McLellan accepted shoulder dystocia was a serious risk, but did not inform M of the risk since it was relatively low and would have led to her requesting a caeserean section, which she felt was not in M’s best interests.
Montgomery v Lanarkshire Health Board - JUDGMENT
SC unanimously held that Dr McLellan’s failure to disclose the risk of shoulder dystocia to M was a breach of her duty of care. Sidaway was overruled - Bolam test no longer applies in relation to the duty to disclosure risk to patients.
Instead, the SC adopted the approach of Lord Scarman in Sidaway - doctrine of informed consent. Test = doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks in the treatment, and of any reasonable alternatives.
Material risk = whether, in the circumstances, a reasonable person in P’s position would be likely to attach significance to the risk. Assessment of whether risk is material cannot be reduced to percentages - need to take into account variety of factors and the needs/concerns of the patient.
However, doctor is entitled to withhold information from P about a risk if he reasonably believes that disclosure would be SERIOUSLY DETRIMENTAL to P’s health.
Rob Heywood
‘RIP Sidaway’ - is highly supportive of the SC decision. He argues that the needs of the patient re information are inherently subjective. Any legal rules that want to take patient autonomy seriously must remain sensitive to the need for the subjective nature of the disclosure duty.
However, Heywood argues that the core strength of Montgomery is actually the way in which Lord Kerr and Lord Reed conceptualised the doctor-patient relationship in a broader sense. Sidaway stripped the duty of disclosure of any content because the standard was so low. Montgomery adds substance to the duty by recognising the different needs of each patient.
Jonathan and Elsa Montgomery
‘Montgomery on informed consent: an inexpert decision?’ - are highly critical of the decision and use it to suggest that it casts doubt over the ability of the courts to adjudicate on matters of clinical judgement.
Definition of the duty of disclosure, when applied by the SC Justices, is hugely problematic and may well create consequences that the judges never actually intended nor envisaged. Problem = SC took it upon themselves to determine what constituted a ‘reasonable alternative’, rather than leaving this to the medical profession as a matter of clinical judgement.
In making that determination for itself - which was inappropriate - the SC departed from established guidelines and disregarded their evidential basis, which compounds the concerns about the decisions and whether judges should really be making these decisions when they clearly appear to be deciding what should be an issue of clinical judgement by those who have expertise in the subject.
SC imparted its own ideology and views as to what the appropriate treatment was/what treatments are better. SC said that risk of caeserean sections was virtually non-existent to women, in stark contrast to NICE guidelines which state that the relative risks in c-sections are greater than natural delivery in a number of respects.
Lady Hale gave a bold judgment in which she claimed Dr MacLellan appeared to have based her decision on her moral preference for natural childbirth. However, analysis of Lady Hale’s comments suggest that she is equally, if not more, susceptible to the same criticism - she appears to substitute her own ideological views on the merits of caesarean sections compared to natural birth.
Test itself is not fundamentally unsound, but its application is deeply problematic and may lead to far-reaching consequences that the SC never intended.
