Catriona McCorry

The Garrick Session 2018 – Medical Negligence: The Development of Informed Consent

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Although GMC guidance on the very issue of informed consent was in circulation from 2008, it took the seminal decision in Montgomery v Lanarkshire Health Board in 2015 [i] for the law to catch up. A prime example of how the law does not always keep pace with medical advances.

 

Key Judgments prior to Montgomery

Bolam v Friern Hospital Management Committee[ii] established the test for negligence in cases involving skilled professionals. If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent. The emphasis is on doctor/ medical paternalism.

Sidaway v Bethlem Royal Hospital Governors and Others[iii]  saw tension growing between medical paternalism and patient autonomy. It was not a unanimous decision.

 

The Montgomery decision

A mother brought a claim on behalf of her son who was born with cerebral palsy as a result of shoulder dystocia during labour. The Supreme Court awarded the Plaintiff over £5 million in compensation. Put simply, Montgomery has established that, a patient should effectively be told whatever they want to know, not what the doctor thinks they should be told.

NB. the standard of the ordinarily competent doctor will still apply in other areas of medical negligence, for example, where injury has resulted in cases of alleged failure to diagnose, delay in diagnosis, or negligent treatment.

For a claimant to be successful post-Montgomery, there are two hurdles to overcome: -

  1. The claimant must show that the information provided to them by the clinician falls short of the new standard of informed consent established in Montgomery
  2. The claimant must persuade the court that had they been provided with the all of the information they claim they should have been given by the practitioner, they would ultimately have made a different decision.

 

Post-Montgomery

Sebastian Webster -v- Burton Hospitals NHS Foundation Trust[iv] is an obstetric case involving baby born with cognitive and physical disabilities. The Court held that, had the mother been given sufficient information to enable her to make an informed decision, there is no question she would have opted for an induction. The causation limb was satisfied.

In the case of Iain Britten v Tayside Health Board[v] the causation limb was not satisfied, as, had the Plaintiff been given all the information he required to make an informed decision, he still would have opted for the same treatment.

 

Practical tips in dealing with these claims

Do you have full notes carefully documenting the consent process?

Is there proof of discussion of reasonable alternatives?

Has there been sufficient focus on the individual patient?

Do the records show both sides of the conversation?

For Patient understanding: 

  • Leafleting is not enough

- If information is to be withheld for therapeutic purpose, is the reason for that made clear in the patient’s notes.

  • Ensure adequate time is set aside.

 

To conclude

With some arguing that it is a disaster from a risk or policy perspective, Montgomery has brought law up to date with medical advances and allowed for greater patient autonomy.

For further information, contact Catriona.

 

[i][i] [2015] UKSC 11

[ii]  [1957] 1 WLR 582

[iii] [1985] 1 All ER 643

[iv] [2017] EWCA Civ 62

[v][v] [2016] SC DUN 75

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