How consent has become stricter
Dr Emma Green highlights some defining cases that have led to the principles of consent and how they apply to current practice.
Consent is not a new topic; many articles have been written on it and usually raise further questions from practitioners about their own consent processes.
It is a common topic that doctors seek advice about and clinicians sometimes need to understand how the pragmatic application of the principles apply to their practice.
Doctors will find it useful to be aware of some of the key defining cases which have led to the current principles of consent.
Case 1. Bolam v Friern Hospital Management Committee [1967]
A patient required electroconvulsive therapy (ECT) for treatment of a mental illness. No muscle relaxant was given and Mr Bolam sustained multiple fractures.
It was alleged that the doctor was in breach of duty for not giving muscle relaxant when, in fact, this omission accorded with usual practice of others giving ECT and the court did not consider there had been breach of duty. This resulted in the following judgment, which most clinicians are familiar with:
‘He is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’
Bolitho [1997] later refined the Bolam test by clarifying that the experts opining as the responsible body for the basis on which Bolitho would be supported must have logical reasoning.
Case 2. Sidaway vs Bethlem Royal Hospital Governors [1985]
The patient, Mrs Sidaway, underwent cervical decompression, which carried a risk of 1-2% of spinal injury even if performed perfectly, along with risk of peripheral nerve damage.
The case found that she was not advised of the risk of serious spinal injury and had she been warned, she would not have undergone the surgery.
It was also found that the patient was not advised that the operation was unnecessary and there was an option of doing nothing.
This case set the common law that a doctor must provide all material risk.
That means telling the patient about all those risks required for them to make a balanced judgement, unless there is considered to be exceptional reason not to – the so called ‘therapeutic exception’.
Case 3. Chester v Afshar [2004]
The claimant in this case had a six-year history of back pain, mobility issues and bladder incontinence secondary to disc protrusion. She therefore opted to undergo surgery.
The consent process did not include the information that the operation carried a 1-2% risk of paralysis and the patient underwent the operation which caused her condition to worsen.
While it was found that the procedure itself was not negligent, the claimant argued that had she been aware of the risk, she would have delayed when she underwent the operation and it was found that the same operation, carried out on a different day, may have had a different outcome.
This outlined that a patient no longer had to prove they would not have undergone the procedure.
Case 4. Montgomery v Lanarkshire Health Board [2015]
Nadine Montgomery was pregnant with her first child. She was concerned about the risk associated with being a diabetic patient and explicitly expressed concern about the risk of the size of her baby and vaginal delivery.
However, the risks of shoulder dystocia were not discussed and she was never offered the option of a Caesarean section.
When Mrs Montgomery went into labour, a shoulder dystocia occurred and her son was born with significant cerebral palsy. Mrs Montgomery claimed for negligence and the case was ultimately heard in the supreme court after the treating clinician advised they had not discussed a caesarean section, as they did not think it to be in her best interests.
The key finding in the judgment made at the supreme court was:
‘The doctor is under a duty to take reasonable care to ensure that the patient is aware of material risks involved in proposed treatment and of reasonable alternatives.
‘A risk is “material” if a reasonable person in the patient’s position would be likely to attach significance to it.
‘Or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’
Three further points were raised which highlighted:
The significance of risk is fact- sensitive and cannot be reduced to percentages;
In order to advise, the doctor must engage in dialogue with their patient;
Therapeutic exception is limited and should not be abused.
Dr Emma Green (right) is a medico-legal consultant at Medical Protection