The Supreme Court has recently made a significant ruling in regards to informed consent in medical cases. The court has departed from the House of Lords case of Sidaway, which held that, save in
The Supreme Court has recently made a significant ruling in regards to informed consent in medical cases. The court has departed from the House of Lords case of Sidaway, which held that, save in limited circumstances, it fell to the doctor to decide when informing the patient what ought to be said and how it should be said when discussing an operation. In doing so, the court has reflected changes in care and the law is now aligned with GMC guidelines that have been in force since the 1990s. The law now recognises that there is a general duty on doctors to obtain fully informed consent from patients and that there is a far greater requirement on doctors to take reasonable care to ensure that patients are aware of material risks and reasonable alternatives to suggested treatments.
Facts
The appellant (M) had been treated by a consultant obstetrician (C) during her pregnancy because she was diabetic; this meant that she was more likely to have a large baby. This resulted in an increased risk of shoulder dystocia (where the baby's shoulders are too wide to pass through the mother's pelvis via conventional vaginal delivery), with there being a 9 to 10 per cent chance of this occurring. M was not informed of this risk as C believed that there was only a very small risk that shoulder dystocia might lead to grave problems for the baby. Shoulder dystocia occurred during the delivery which deprived the baby of oxygen and consequently led to the baby being born with severe disabilities. M brought an action in negligence on the basis that the failure to advise her of the risk of shoulder dystocia meant that she was denied the chance to elect delivery via caesarean section. The Court of Session rejected her claim.
First Appeal
M appealed this decision to the Inner House. The Inner House dismissed the appeal, relying on Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871. In Sidaway, the House of Lords ruled that the Bolam test (namely whether the doctor acted in accordance with a reasonable/responsible body of medical opinion) applies to claims arising from alleged failures to warn patients of risks inherent in an operation. In Sidaway the House of Lords held that there is no doctrine in English law that a patient is entitled to know everything about the care they are to receive and also that there is no concept that the doctor was entitled to decide everything. Their Lordships held that a simple and general explanation of the nature of the operation should be sufficient to alert patients to the fact that a major operation will be performed and the possibility that something might go wrong. If a patient knows a major operation may entail serious consequences, the patient cannot complain of lack of information unless the patient asks for more information.
The Inner House held that the judge was correct in applying the Bolam test and that he had been entitled to find that, in advising of the risks, the surgeon had acted in accordance with a standard accepted as proper by a responsible body of a medical opinion. The appellant appealed to the Supreme Court.
Supreme Court
A seven-judge panel of the Supreme Court unanimously allowed the appeal, holding that the approach of the majority in Sidaway was unsatisfactory. Giving the judgment of the court, Lord Kerr and Lord Reed found that since Sidaway, it has become clear that the paradigm of the doctor-patient relationship, implicit in the speeches in that case, has ceased to reflect reality and complexity in the way which healthcare services are provided. With a greater ability for the public to access details on symptoms, investigations, treatment options, risks and side-effects via sources such as the internet, it would be a mistake to view patients as uninformed and incapable of understanding medical matters. Lord Kerr and Lord Reed stated:
'An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore 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 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.
The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient's health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.' (emphasis added)
The Supreme Court held that disclosure of the risks regarding shoulder dystocia were found to likely have affected the decision of M and therefore the baby being born with severe disabilities could have been avoided.
In some ways the case does no more than provide a common law underpinning to requirements already incumbent on medical practitioners in relation to informed consent. That said, medical practitioners will no longer be able to rely on a defence based on Sidaway in actions in negligence. Beyond that, the case represents a rare example of the Supreme Court reversing a previous decision on the basis of changing social and professional conditions. To that extent, it is a fascinating case for lawyers and those with an interest in the development of the medical professions as a whole.
Facts
The appellant (M) had been treated by a consultant obstetrician (C) during her pregnancy because she was diabetic; this meant that she was more likely to have a large baby. This resulted in an increased risk of shoulder dystocia (where the baby's shoulders are too wide to pass through the mother's pelvis via conventional vaginal delivery), with there being a 9 to 10 per cent chance of this occurring. M was not informed of this risk as C believed that there was only a very small risk that shoulder dystocia might lead to grave problems for the baby. Shoulder dystocia occurred during the delivery which deprived the baby of oxygen and consequently led to the baby being born with severe disabilities. M brought an action in negligence on the basis that the failure to advise her of the risk of shoulder dystocia meant that she was denied the chance to elect delivery via caesarean section. The Court of Session rejected her claim.
First Appeal
M appealed this decision to the Inner House. The Inner House dismissed the appeal, relying on Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871. In Sidaway, the House of Lords ruled that the Bolam test (namely whether the doctor acted in accordance with a reasonable/responsible body of medical opinion) applies to claims arising from alleged failures to warn patients of risks inherent in an operation. In Sidaway the House of Lords held that there is no doctrine in English law that a patient is entitled to know everything about the care they are to receive and also that there is no concept that the doctor was entitled to decide everything. Their Lordships held that a simple and general explanation of the nature of the operation should be sufficient to alert patients to the fact that a major operation will be performed and the possibility that something might go wrong. If a patient knows a major operation may entail serious consequences, the patient cannot complain of lack of information unless the patient asks for more information.
The Inner House held that the judge was correct in applying the Bolam test and that he had been entitled to find that, in advising of the risks, the surgeon had acted in accordance with a standard accepted as proper by a responsible body of a medical opinion. The appellant appealed to the Supreme Court.
Supreme Court
A seven-judge panel of the Supreme Court unanimously allowed the appeal, holding that the approach of the majority in Sidaway was unsatisfactory. Giving the judgment of the court, Lord Kerr and Lord Reed found that since Sidaway, it has become clear that the paradigm of the doctor-patient relationship, implicit in the speeches in that case, has ceased to reflect reality and complexity in the way which healthcare services are provided. With a greater ability for the public to access details on symptoms, investigations, treatment options, risks and side-effects via sources such as the internet, it would be a mistake to view patients as uninformed and incapable of understanding medical matters. Lord Kerr and Lord Reed stated:
'An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore 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 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.
The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient's health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.' (emphasis added)
The Supreme Court held that disclosure of the risks regarding shoulder dystocia were found to likely have affected the decision of M and therefore the baby being born with severe disabilities could have been avoided.
In some ways the case does no more than provide a common law underpinning to requirements already incumbent on medical practitioners in relation to informed consent. That said, medical practitioners will no longer be able to rely on a defence based on Sidaway in actions in negligence. Beyond that, the case represents a rare example of the Supreme Court reversing a previous decision on the basis of changing social and professional conditions. To that extent, it is a fascinating case for lawyers and those with an interest in the development of the medical professions as a whole.