January 22nd, 2015
in Op Ed
The law of consent to medical procedures is (to paraphrase legal philosopher HLA Hart) “tantalisingly obscure”. Narrowly interpreted, the law sets out a professional standard regarding the risks a medical professional must disclose to a patient when carrying out a procedure. Astonishingly, the idea of what is considered informed consent primarily comes from case law, defined by decisions made in specific court challenges. It doesn’t really focus on the patient, but on the medical profession – something that is out of step with how most of us likely see the idea of consent.
Cases such as Birch v UCL Hospital NHS Foundation Trust in 2008 show that respecting patient autonomy is becoming increasingly important. Here, the claimant said medics failed to adequately consider and relay the risks of a particular procedure and those of a less invasive alternative.
The Montgomery case
It is clear the issues surrounding consent are ethical, not medical in nature. Now another defining medical law case is about to be decided. Montgomery (AP) v Lankarshire Health Board has given the supreme court an opportunity to address the ethics of when a medical professional has been less than forthright in disclosing certain risks of a procedure. It is crucial that the court seizes the opportunity with both hands.
The facts of the case are heartbreaking. It concerns Nadine Montgomery, a small pregnant woman with diabetes. Because women with diabetes are likely to have larger than average babies there was an increased risk of shoulder dystocia – when a baby’s shoulders are obstructed by the mother’s pelvis during delivery. Because of this, Montgomery’s son was deprived of oxygen and was born with cerebral palsy. Montgomery contends that her obstetrician was legally negligent in managing her pregnancy because she failed to warn of the risks presented by natural delivery (including shoulder dystocia), as well as the option of a cesarean section following a CTG trace (which records foetal heartbeat and contractions during pregnancy). The health board argues that their duty to warn of risk would only have been triggered by the risk of a grave adverse outcome, but because this risk was so low and Montgomery had not directly asked, no warning was given.
The case was heard by the supreme court in July and its judgement should be delivered in early 2015.
Why Montgomery matters
Montgomery is of real importance. It is the first proper opportunity, since Sidaway v Bethlem Royal Hospital Governors almost 30 years ago, that the highest court has had to deal with the issue of consent. Sidaway concerned a patient who had been left paralysed after an operation on a trapped nerve. While Sidaway lost a claim for negligence, the case did establish that doctors have a duty to give patients enough information to help them come to a judgement about how necessary a procedure is and about any alternatives. But importantly, the Sidaway court concluded that a respectable body of medical opinion agreed that it was not necessary to warn a patient of every risk.
It is not in dispute that Montgomery was not given the full facts regarding the risk of shoulder dystocia and the alternative course of caesarean section. The pertinent question is whether this non-disclosure was negligent. It is clear, ethically, that there should have been full disclosure. The physical stature of Montgomery and the potential harm of shoulder dystocia from a natural birth meant that this should have occurred – and the same for any alternative treatment. This is to respect Montgomery’s autonomy. But rather than focusing solely on the conduct of the professional, a viable, if not weightier, argument is that the court should strive to protect a patient’s autonomy.
The implications of the case will be profound. On the one hand, the supreme court could really grasp the nettle. It could recognise the standards of non-negligent disclosure (which would put the onus on the profession to disclose rather than rest only on their medical judgement) are based on outdated, unsound ethical principle. This would herald an explicitly patient-oriented approach to consent.
It would also recognise, rightly, that the main driver behind the law on consent should be to enable patients to make a substantially informed, voluntary decision. In 2001, Lord Woolf, England and Wales' top judge criticised judges for being too deferential to the medical profession.
Alternatively the supreme court could adopt a conservative approach, and fail to give put the onus on the patient’s rights. Yes, there is a growing recognition of patient rights. Yet the lower courts have still traditionally been reluctant to shift the focus from professionals to patients (and lower courts have of course previously decided in favour of the health board). In adopting this approach, the law on consent would be left at odds with incredibly important ethical and social values.
Medical and ethical experts
The court should take the bold step of ensuring the law of consent focuses on the risks a patient would wish to be informed of. Strictly speaking, the current test of negligent risk disclosure is based on customary practice – essentially, whether other professionals are doing the same. This standard is inadequate for a number of reasons.
If standards of disclosure are set by custom, there is the possibility of risk disclosure being inadequate across the profession while still being legally and ethically permissible. These concerns are well-documented. Most importantly though, the disclosure of risks doesn’t involve technical medical skills but communication skills not exclusive to medical professionals. The ethical issue is whether the medical professional has enabled the patient to make a meaningful choice about a medical procedure. This is done by providing them with material information about the risks associated with that procedure.
The Montgomery case could change medical law for the better. Baroness Hale, the judge in this case is no stranger to novel and expansive approaches and I hope she adopts a like-minded approach here. Montgomery will be symbolically and substantively important. We are all patients at some point in our lives and the issue of consent affects us all.
Substantially focusing on medical professionals when deciding on standards of disclosure, to the exclusion of patients, undermines the point that it is patients who ultimately must consent. It is time that the law caught up with society and addressed this. The judgement will signal an important aspect of the legal standard of care a medical professional is committed to.