The Issue of Consent
The BBC has this week reported on a case involving patient consent in France. According to the report, a woman was subjected to a painful, intimate examination at the hands of her gynaecologist without adequate consent. Her enquiries led her to investigate trainee doctors routinely performing examinations without consent.
This story comes at a highly topical time. In the UK, the recent Scottish case of Montgomery v Lanarkshire Health Board  UKSC 11 has led to a change in approach to consent cases.
The case facts:
Mrs M was pregnant with her first child. She was of small build, just over 5 feet tall. Throughout her pregnancy she suffered from a condition called gestational diabetes, which meant that her baby was likely to be large when born. As a result of her small frame and chances of having a large baby, her baby was at greater risk of suffering from shoulder dystocia, when the baby's shoulder gets 'stuck' making delivery more difficult. This risk was in the region of 9-10%.
During the course of her pregnancy, Mrs M raised concerns of naturally delivering a large baby with a small frame on a number of occasions. She was reassured by her treating doctor. The doctor did not mention the risk of shoulder dystocia, or discuss the option of having an elective Caesarean section.
In the event, there were difficulties during delivery, including shoulder dystocia. Although the appropriate manoeuvres were performed to try and deliver the baby, there was a 12 minute delay in delivery. During that time, Mrs M's baby was starved of oxygen. He was subsequently diagnosed with cerebral palsy.
Mrs M brought a claim against the Health Board, alleging that she should have been:
- Advised of the risk of shoulder dystocia; and
- Given the option of having an elective Caesarean section
If she had been, she argued she would have chosen to give birth by Caesarean section, and the damage to her son would have been avoided. The Court agreed, and she was awarded damages in the sum of £5.25 million for the lifelong needs of her disabled son.
"Material Risks" Test
The decision means that doctors must now consider any "material risks" involved in any proposed treatment, as well as advise of any reasonable alternatives. In reality, the decision endorses the principles set out in the General Medical Council (GMC) guidance on consent, "Consent: Patients and Doctors Making Decisions Together (2008). Effectively, the "new test" as set out in the Court ruling states:
"The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."
In plain English, what this amounts to is providing a patient with sufficient information regarding treatment or surgery, the risks involved and any reasonable alternatives, in order to make an informed decision as to how they wish to proceed.
There are now a number of situations where potential claims based on risk can be envisaged. For example:
- high risk pregnancies where Caesarean section is an option – as described above
- wrongful birth claims
- cases involving treatment where there are a number of options, including conservative vs radical treatment
- cases involving GP or hospital decisions to send a patient home without further discussion to return if symptoms persist, or where there is a limited window of opportunity for treatment before damage is likely to become permanent e.g. scaphoid fractures, meningitis, treating DVT
Arti Shah, Associate at Fieldfisher commented:
"In an age where information is readily available on the Internet, it is appropriate to have an open discussion with a patient to adequately explore treatment options. This should take account of the seriousness of the condition, alternative options, and the risks and benefits of these to allow a patient to make an informed decision regarding treatment."
By Arti Shah, Associate