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the function of the law to redress the imbalance by providing patients with
the right to be given that information, or perhaps more accurately
imposing a duty on doctors to provide it.
The idea of disclosing information to the patient has therefore
developed through the years, and in many cases the courts have
improved the legal position regarding this matter. Hippocratic model was
then replaced with partnership model. The rationale was, apart from
respecting patient autonomy; allowing patients to decide as to what they
want to be done to their bodies have become more possible with the
advances in medical technology.
In order for consent to be legally valid, the patient must give the
consent validly, have the capacity to give the consent and thirdly they
must understand the nature of the treatment in question. The idea of
informed consent is one that is derived from the third of these
requirements. All three of these requirements have to be proved in order
to establish consent, and failure to prove this would hold the medical
practitioner in question to be liable under battery. In fact, in R v Brown
[1994], Lord Templeman treated consent as a defence to battery.
Although obtaining an informed consent has often regarded as an
ethical obligation, the English Legal System has been active in asserting
that it is also a legal obligation, through the various case laws that have
been decided before the courts.
One of the cases is Chatterton v Gerson [1981]. In this case, the
court established that the information required for there to be a valid
consent is largely similar to that of battery. Justice Bristow in the Queens
Bench Division stated that in order to succeed in trespass, the claimant or
rather the patient has to show that there has been a lack of real consent,
but if the patient has been informed in broad terms of the nature of the
procedure which is intended, and given his consent, that consent is real.
This case has also seemingly emphasised that a mere fact of signing the
consent form does not establish a complete consent, making the provision
of information a more important factor to determine consent.
It is also important to note that it is sufficient so long as the
claimant has understood the nature of the procedure in broad terms in
order to consent to the procedure, to have derived the information for a
source other than the doctors themselves. Therefore, an action in battery
would only be applicable where the doctor has treated the patient against
her will. This is along with the statement by Lord Diplock in Sidaway v
Bethlem Royal Hospital [1985], that consent to what would otherwise be a
battery is a state of mind personal to the victim of the battery.
any supportive experts opinions, but requires the medical opinion to have
a logical basis. Further, Lord Woolf in Pearce v United Bristol Healthcare
Trust (1999) supported Lord Bridges statement in Sidaway that a
significant risk is something that is in the region of ten per cent, failing
to consider a 0.1 to 0.2% risk of stillbirth to be significant enough. Lord
Steyn in Chester v Afshar on the other hand, stated that the patient has a
prima facie right to be informed of even a small, but well established risk
of serious injury that could result from a surgery.
The reasonable doctor test was substantially criticised to place too
much of a discretion on the medical practitioners and for its failure to
place sufficient importance on the right to self-determination of patients.
In fact, the Australias highest federal court in the case of Rogers v
Whitaker (1992) has demonstrated its disagreement with the test as early
as 1992, by applying the prudent patient test and finding the surgeon
negligent for failing to disclose a risk that is only slightly greater than one
in 14000, despite his action being supported by a body of medical opinion.
Although the Sidaway approach was endorsed by cases such Pearce
v United Bristol and Gold v Haringey Health Authority [1988] (where the
rule in Sidaway was applied to sterilisation for contraceptive purposes
rather than restricted to therapeutic procedures), however, the current
leading case on the disclosure of risks is Montgomery v Lanarkshire Health
Board [2015], rejecting Sidaway and its endorsement of Bolam. This is
because the reasonable doctor standard was gradually recognised to be
too paternalistic and there is risks of medical opinions agree to the
doctors conduct although the risk associated to it is significant.
Further, the prudent patient test endorsed by Lord Scarman is
uncertain especially to the medical practitioners as they will be expected
to focus on finding out what the patients would like to know instead of
focusing on disclosing the information they consider is important or
significant. The prudent patient test may however be helpful in cases
where there are other alternatives to a treatment that might carry lesser
or no risks, as that can be seen in Birch v UCL Hospital NHS Foundation
Trust [2008] where a doctor who had informed the patient of the
significant risks was held liable for negligence nonetheless simply because
there was an alternative procedure carrying fewer or no risks that the
doctor failed to inform to the patient.
In Montgomery, the test articulated is in the circumstances of the
particular case, would a reasonable person in the patients position would
be likely to attach significance to the risk, or the doctor is or should
the doctors opinion, the possibility of it causing a serious problem for the
baby was very small. The doctor also suggested that advising of the risk
would lead to most women electing for a caesarean section. During the
vaginal delivery the umbilical cord was completely or partially occluded,
thereby depriving the baby of oxygen. After his birth, he was diagnosed as
suffering from dyskinetic cerebral palsy. It was the Mrs Montgomerys case
that had she been told of the risk of shoulder dystocia she would have
elected for a caesarean section.
The Supreme Court in this case disagreed with the majority
judgement in Sidaway and was of the view that Lord Scarmans dissenting
judgement was more favourable. It was held that the doctor was under a
duty to take reasonable care to ensure that the patient is aware of any
material risks involved in proposed treatment, and of reasonable
alternatives. A risk was material if a reasonable person in the patients
position would be likely to attach significance to it, or if the doctor was or
should reasonably be aware that their patient would be likely to attach
significance to it. This is in line with the General Medical Guidance (GMC)
2008 whereby it was stated that doctors must share with the patients the
information that they want or need in order to make decisions. They
cannot simply make assumptions as to the information that the patients
may want to know.
Lord Kerr and Lord Reed reasoned that an adult of sound mind is
entitled to decide which, if any, of the available treatments to undergo,
and her consent must be obtained before treatment interfering with her
bodily integrity is undertaken. This is in favour of the patient autonomy
argument. The patient must also be informed of the reasonable
alternatives, especially when they carry fewer or no risk at all when
compared with the proposed procedures.
Lord Ordinary was of the view that if only had the doctor discussed
every details of the risk of the proposed procedure to Mrs Montgomery,
with the alternatives available, Mrs Montgomery would probably have
chosen the caesarean section, reducing the risk of the stillbirth. Lady Hale
was also somewhat of the same opinion, stating that the doctor should
properly weigh the advantages and disadvantages of the vaginal delivery
compared to a caesarean section and inform the patient about it.