Consent to treatment – to advise and inform a patient of the risks, a doctor needs to be informed

In the case of Montgomery, when looking at the issue of consent to treatment the Court expressed the legal duty on doctors thus:

“The doctor is … 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.”

Adequacy of advice

So when considering the adequacy of a doctor’s advice, it is inappropriate to do so with regard to the standards of a reasonable medical professional. Instead the question is whether the patient would attach significance to the risks about which advice is given or required. As the court said:

“…patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession ... Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.”

In the case of Webster v Burton Hospitals, heard by the Court of Appeal earlier this year, the background was a child born with cerebral palsy and having profound physical and cognitive impairment. It was agreed that had the child been delivered earlier he would have avoided his injuries. Referring to the care offered by the consultant in charge of mother and child, the court noted that at no time prior to the birth, and specifically after an ultrasound scan on the 18 November 2002, did he identify or note 1) that the fetus was small for its gestational age; 2) the recorded asymmetry between the abdominal and head circumference; and 3) the polyhydramnios (excess liquor). Instead the consultant treated the pregnancy as being without these features.

The two issues before the Judge at first instance were a) what would have been shown if further ultrasound scanning had taken place (and negligently did not) and b) what should have happened as a consequence. In summary, the case for the child was that the consultant should have offered the mother the possibility of induction of labour at term on 27 December and that if he had done so the subsequent brain damage would have been avoided.

The Judge at first instance was clear in finding that had the mother been advised that she should proceed to an induction, or that there were increased risks in waiting until 6 or 7 January, she would have wanted to be delivered.

As to the consultant, the judge found that he did not think that the features revealed on the 18 November scan were relevant, at the time, to the management of the pregnancy. Whatever he understood, at the time, about the combination of features as an indicator of possible problems, that was not something that need influence his management of mother and as yet unborn child.

Looking at the expert evidence presented to the court at first instance the Judge concluded that the body of clinicians that would not be deflected from their usual conservative course, could not be said to be acting irrationally or illogically and so were opinions that ought to be accepted as reasonable according to case law and the Bolam and Bolitho tests in particular.

The decision at first instance in this case happened before the appeal in Montgomery, so it is not surprising this case then went to the Court of Appeal.

Worth saying and repeating

The significance of the decision in Montgomery so far as the present case is concerned can be seen from the passage at the start of this article.

“ … 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.”

Significance of the risk

There were three further points the Court of Appeal noted. First, the assessment of whether a risk is material cannot be reduced to percentages. The court noted GMC guidance when stating:

“The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.”

Secondly, the judgment also set out the importance of the dialogue between doctor and patient as part of the doctor’s advisory role:

“… the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.”

Third, it was clear that the Bolam approach (which decided that a doctor was not negligent if he or she acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art), is no longer appropriate. The issue was not whether a reasonable body of medical opinion would have been deflected from a particular course, but what advice should properly have been given to the mother and what would have happened as a consequence. Finding that the consultant had not put himself in a position to be able to discuss the particular features of the pregnancy and the risks attending them, he was unable to express advice in terms that would have influenced the mother’s decision and led to an earlier induction and birth.

Although medical thinking about the associated risks was referred to during the case as an “emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features” it was evidence that the consultant had not, as he should have (so the court found) identified as material and consequently had not passed on to the mother.

Accordingly the appeal was allowed and liability found against the defendant.

Exceptions?

There is a limited exception to what can now be considered the “rule in Montgomery” when a doctor may withhold from the patient information about a risk if they reasonably consider its disclosure would be seriously detrimental to the patient’s health. The Courts have stressed that this exception should not be used to interfere with the autonomy of a patient where the doctor fears that the patient will make an unwise choice.

Conclusion

It is to be expected that a number of cases will emerge from the appeal courts that might have been decided at first instance prior to the Supreme Court Montgomery decision. What was interesting in the Webster case was the continued reliance by the defence that even had more ultrasound scans been undertaken, the management of the pregnancy on balance would not have changed so that in terms of causation the claimant’s case could not be proved. That was an argument that failed, on the simple finding that the consultant was unaware of the risks as he had not identified them so could not have presented them to the patient. Had he done so the patient was clear that she was happy to take responsibility for her decisions and had she been armed with knowledge of the risks, would have elected an early induction.