A recent Supreme Court judgment has changed the legal landscape surrounding patients’ consent to treatment.
The Court ruled in March 2015 that the burden is not on the patient to ask about the risks and options associated with any particular procedure, instead it is for the medical practitioner to disclose them, even if the risks are small.
Previously the Bolam test of reasonableness applied: a doctor could withhold information about potential risks, if it would be accepted as appropriate by a responsible body of medical opinion.
In the case heard in the Supreme Court Mrs Montgomery's doctor failed to tell her when pregnant that her specific health concerns meant her child risked shoulder dystocia during delivery.
At first this was ruled as acceptable under the Bolam test i.e. that other doctors would think this omission was appropriate as the risk of grave injury to the baby was small.
However, on appeal the Supreme Court decided that a doctor was under a duty to disclose all material risks to a patient and that it was negligent to fail to do so.
The Supreme Court ruling means that the Bolam test may no longer be appropriate in consent cases.
How does this affect the relationship between doctor and patient?
This judgment suggests that doctors now have to discuss with their patients the options available to them and advise on alternative treatments and associated risks involved.
This must be right as how can a patient be expected to understand, interpret and anticipate risks and complications of a surgery that their medical adviser hasn’t fully explained to them?
Patient trust in doctors will inevitably improve, if doctors are advising patients about all associated risks and giving the ‘full picture’.
A GMC document cited in the Montgomery judgment acknowledged that informing your patients must be integral to a doctor’s professionalism.
In this technological age, where information is so accessible, the general public is well informed and capable of understanding medical issues when explained to them. This was recognised in as a factor in the Montgomery judgment.
The idea that a doctor could withhold certain risk information as unimportant to the patient is insulting and an inappropriate judgment call to be made by anyone other than the patient themselves.
Hopefully, patients’ trust in doctors will improve if doctors are advising patients about all associated risks and giving them the ‘full picture’.
The judgment recognises patients’ right to have the risks of treatment properly discussed with them so that they can make an informed decision on how to proceed. This should be seen as part of the basic right to receive competent medical care and treatment.