Medical Consent Forms
The low down on Medical Consent Forms
Until this year, legal consent issues between doctor and patient were still decided according to the past case of Sidaway. The problem is that Sidaway is now an old case decided in 1985. Times have changed a lot since then.
In March this year the case of Montgomery v Lanarkshire Health Board was heard, a Scottish Court of Appeal decision. The Montgomery case has recognised that over the last 30 years, or so, there has been a real shift in the doctor/patient relationship. Gone are the days when we sat with unquestioning trust and awe with a doctor telling us what was going to happen.
Doctors must now be more careful in giving comprehensive advice to patients who are considering recommended treatment. We patients are a better-educated bunch than 30+ years ago; we have access to the internet and, often, the first course of action now, when worrying about our health, is to ‘Google’ our symptoms before seeing our GP. Whenever we do arrive at the doctor’s door we are going to turn up much better informed, or, at least, better educated, than 30 years ago. We are entitled to take part in the decision-making process.
So, what was the Montgomery case about?
In 1999, Mrs Montgomery’s baby boy was born with serious disabilities, after his shoulder became stuck in Mum’s pelvis during delivery, causing a delay in delivery. This complication is called ‘shoulder dystocia’ and is more common in diabetic mums because they tend to have larger babies. It can also be a risk for pregnant ladies with a small pelvis carrying a large baby.
A nightmare situation arose at delivery as a ‘manoeuvre’ to try to free the baby’s shoulder failed. This manoeuvre can be traumatic in itself for Mum, involving staff sitting over her and pressing on her tummy. It is classed as a major medical emergency. As this failed, the Consultant then had to attempt to cut Mum’s pelvic cartilage, without the right equipment being available to do so and then applied tremendous force to the baby boy to wrench him free. Unfortunately, this caused him to develop cerebral palsy, affecting all four of his limbs.
Clearly it’s logical that, with larger babies, the risk of a shoulder becoming stuck during delivery increases. The risk is about 1 in 10. However, the doctor did not tell Mrs Montgomery about shoulder dystocia as the doctor decided it was not in her interests to know. In the doctor’s view, although shoulder dystocia can occur, it is often managed without any medical complications. Sometimes without Mum even knowing it has happened.. If told of the risk, the doctor felt that Mum might opt to have a caesarean section, rather than a natural delivery and a caesarean section also poses risks. The doctor made the decision about the mode of delivery without affording Mum a full opportunity to take part in that process.
It is relevant that Mrs Montgomery was a highly educated patient, having studied molecular biology and worked for a pharmaceutical company. She had various risks, being diabetic, and indeed carrying a large baby, as well as being petite, at a little over 5 foot tall. Her son was a large 9.9 lb birth weight. During her pregnancy she was plainly worried about the size of her baby and whether she would manage to deliver him unassisted. She gave evidence in her son’s case that she would have asked for a caesarean delivery if fully informed about the general risks of shoulder dystocia.
The crucial passage from the court’s decision in Montgomery is as follows:
“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 alternatives 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.”
Of course, there are always exceptions to the general rule. There are a few narrow exceptions to the Montgomery case, where a patient is unconscious, so can’t make a decision about urgent treatment needed for example, or where informing the patient might seriously damage the patient’s health.
Applying the case to your medical care
You should get fairly comprehensive advice about the risks and benefits of the doctor’s proposed treatment. It is still not the case that you should be told of every possible risk. The duty to inform you depends on the nature of the risk, what effect it could have on you and your life, how important it is to you to have the treatment, the alternatives available, and the risks of the alternatives. Your characteristics as a patient are also relevant, so every case has to be judged on its own merits.
So, what do Medical Solicitors think about Montgomery?
We applaud the Montgomery decision. After all, who wouldn’t be incredibly excited if they were told there was a 1 in 10 chance of winning the lottery? At the same time, a 1 in 10 chance of suffering the medical emergency of shoulder dystocia surely has to be considered a ‘material risk’? Had Mrs Montgomery been better informed, she told the court that she would have asked for a caesarean section delivery. It was not disputed in Mrs Montgomery’s case that her son would probably have grown up without disability and without requiring a lifetime of extra care and support had there been a caesarean section delivery.
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