Questions answered: 5 & 6.
Q5.
Consent is a crucial legal issue within the field of medicine. When obtaining a patient’s
consent, this must be accompanied with sufficient preoperative disclosure to legitimise
medical intervention. Moreover, it is necessary to allow a patient to make a meaningful
choice, ultimately promoting patient autonomy. The issue however, relates to how much
preoperative information a patient should be provided to enable the consent given to be
sufficiently informed and therefore legally valid.
Canterbury v Spence illuminated this issue. An interpretation of the judgment is that if
insufficient information accompanies consent, this compares to no consent entirely,
rendering it an empty gesture. The resultant effect is that remedial legal actions open up for
the patient. An appealing option to pursue is battery. This tort provides a remedy for unlawful
touching and protects the patient against the invasion of bodily integrity; thus placing greater
emphasis on autonomy. It is advantageous as it is actionable per se, and there is no
question as to standards of medical judgements. However, this avenue has been curtailed
by the likes of Chatterson v Gurson. It was held that once a patient is informed in broad
terms about the nature of the procedure and gives their consent, the tort of battery is
restricted. Such a view was adopted by the English courts as they did not want to discourage
medical professionals from acting in their judgment nor willingly expose them to tortious
action. To do so may imply medical professionals had undertaken deliberate and hostile
actions. The avenue of battery was therefore limited to protect medical professionals. Cases
of alleged inadequate preoperative disclosure were redirected as a negligence action.
Uncertainties arose as to what test is needed to determine the adequate duty a doctor has to
disclose preoperative information. Responsibility for this unpredictability arose in Sidaway v
Bethlem Royal Hospital. The case involved an allegation that the consultant failed to
disclose the risk of spinal cord damage. Confusion was created as there was no consistent
line of reasoning throughout the judgment. Lord Scarman adopted a prudent patient
standard as illustrated in Canterbury v Spence. In contrast, Lord Diplock took a narrow
perspective and failed to consider why a patient required information to make an informed
choice. The key ratio was provided by Lord Bridge, who predominantly found merit in
applying the Bolam standard unless there was a substantial risk of grave and adverse
consequences. This left a difficulty in considering what is meant by a ‘substantial risk’. The
law was left uncertain as to whether it was based upon percentage rate occurrence, or on
severity of consequences. Sidaway gave little guidance on this and thus English law was left
in this state for a considerable time.
Incremental developments arose from subsequent cases, signifying the importance of
patient autonomy and unease with judges as to the suggestions of Sidaway. A step forward
stemmed from Pearce v United Bristol NHS Health Trust, a decision that inserted
terminology of the reasonable patient where it had not previously. This was followed by Birch
v UCLH NHS Trust that suggested an obligation to inform the patient of alternative
procedures, and Chester v Afshar that altered legal rules to give effect to autonomy,
recognising it required greater attention. The societal understanding of the doctor-patient
relationship also changed and developments emanated within the medical field. Prior to
Sidaway was the ingrained paternalistic culture that the ‘doctor knows best’ and patients
unquestioningly handed themselves over to the expert, which Professor Jones attributes to
the imbalance of power between the parties. To reflect the change from this perspective, the
GMC introduced detailed guidelines for informed consent, and thus the medical field
advanced beyond any standard that the law required. However, this led to discrepancy.
, Montgomery v Lanarkshire Health Board took the opportunity to change the test provided in
Sidaway and consequently provided a key judgment that considered material risk. It asked
whether a reasonable patient would consider the risk to be material, an objective lens; and
also whether the particular patient would consider the risk to be material. If so, information
had to be disclosed. The introduction of a subjective element, looking at the perspective of
the individual patient and their circumstance, refocused the emphasis of the doctor-patient
relationship. Patients were no longer viewed as passive recipients of treatment, care choices
were to be based on a shared decision-making process. This test mirrored that of Rogers v
Whitaker. The Supreme Court was acutely aware of the comparative positions in other
jurisdictions and recognised English law needed to accommodate the changes already
occurring in medicine. Despite offering a refreshing view of the doctor-patient relationship
and promoting active involvement on behalf of the patient, the decision in Montgomery was
not without its problems. Sarah Chan has discussed that Montgomery represents “a radical
move away from English law’s traditional respect for clinical expertise”. The judgment
outlined a patient needed to understand the information given to them, but no clarification
was given as to how the doctor can achieve this. If there is no demonstration of
understanding, potentially the information disclosed is redundant. It is understandably
frustrating to healthcare professionals, as the duty of doctors to assess the level of
understanding has not been framed. The unknown level of obligation imposed on a doctor
has the potential to go beyond the standard of reasonableness. The suggestion is that
reasonable steps can be taken to obtain understanding, but what these steps entail remain
unclear.
Another vague element is what is meant by material risk. The term is ambiguous. The
judgment determined that percentages should not be the key factor, but failed to clarify what
instead should be given attention. Inevitably, judges found solace in percentage rate
occurrence. A further issue relates to the subjective branch of disclosure. The precise
parameters placed on doctors to discover the circumstances of the particular patient are
undefined. Additionally, questions remain unanswered as to the scope of obligation to
disclose reasonable alternatives, and as to what constitutes a reasonable alternative. It is
impractical to expect a doctor to discuss every possible alternative. If a doctor feels
compelled to excessively disclose information for fear of legal action, this may be harmful
and deter patients from necessary procedures.
Moderate relief is provided for clinicians, under the therapeutic privilege exception. In some
instances, clinicians are entitled to withhold information if it is believed to be detrimental to
the patient’s physical or mental health. Ian Kennedy suggests it is a realistic mechanism that
can be relied on to exercise some discretion. However, despite being addressed in
Montgomery, the exact framework for this defence is not clarified. The case is not looked
upon fondly by medical professionals, as ultimately, it does not translate to a workable model
in practice.
Other wider issues have also been questioned. Montgomery only sought to address
preoperative disclosure, so uncertainty remains surrounding postoperative disclosure. This
leaves medical professionals susceptible to legal action, as illustrated in Spencer v
Hillingdon Hospital NHS Trust. Additionally, there is ambiguity regarding whether a change
of surgeon invalidates consent. In Jones v Royal Devon & Exeter NHS Foundation Trust, the
claimant was successful in establishing lack of consent. It was held to be inappropriate for
the patient to make a decision immediately preceding surgery, as there was inadequate time
for communication between parties, nor for free choice to be utilised. The practical impact
has been considered by commentators such as Sarah Devaney, highlighting that this will
lengthen hospital consent processes needed to fulfil obligations in a setting where time is a
precious commodity.
Whilst it is fair to say Montgomery was welcomed after the confusion caused by Sidaway
Q5.
Consent is a crucial legal issue within the field of medicine. When obtaining a patient’s
consent, this must be accompanied with sufficient preoperative disclosure to legitimise
medical intervention. Moreover, it is necessary to allow a patient to make a meaningful
choice, ultimately promoting patient autonomy. The issue however, relates to how much
preoperative information a patient should be provided to enable the consent given to be
sufficiently informed and therefore legally valid.
Canterbury v Spence illuminated this issue. An interpretation of the judgment is that if
insufficient information accompanies consent, this compares to no consent entirely,
rendering it an empty gesture. The resultant effect is that remedial legal actions open up for
the patient. An appealing option to pursue is battery. This tort provides a remedy for unlawful
touching and protects the patient against the invasion of bodily integrity; thus placing greater
emphasis on autonomy. It is advantageous as it is actionable per se, and there is no
question as to standards of medical judgements. However, this avenue has been curtailed
by the likes of Chatterson v Gurson. It was held that once a patient is informed in broad
terms about the nature of the procedure and gives their consent, the tort of battery is
restricted. Such a view was adopted by the English courts as they did not want to discourage
medical professionals from acting in their judgment nor willingly expose them to tortious
action. To do so may imply medical professionals had undertaken deliberate and hostile
actions. The avenue of battery was therefore limited to protect medical professionals. Cases
of alleged inadequate preoperative disclosure were redirected as a negligence action.
Uncertainties arose as to what test is needed to determine the adequate duty a doctor has to
disclose preoperative information. Responsibility for this unpredictability arose in Sidaway v
Bethlem Royal Hospital. The case involved an allegation that the consultant failed to
disclose the risk of spinal cord damage. Confusion was created as there was no consistent
line of reasoning throughout the judgment. Lord Scarman adopted a prudent patient
standard as illustrated in Canterbury v Spence. In contrast, Lord Diplock took a narrow
perspective and failed to consider why a patient required information to make an informed
choice. The key ratio was provided by Lord Bridge, who predominantly found merit in
applying the Bolam standard unless there was a substantial risk of grave and adverse
consequences. This left a difficulty in considering what is meant by a ‘substantial risk’. The
law was left uncertain as to whether it was based upon percentage rate occurrence, or on
severity of consequences. Sidaway gave little guidance on this and thus English law was left
in this state for a considerable time.
Incremental developments arose from subsequent cases, signifying the importance of
patient autonomy and unease with judges as to the suggestions of Sidaway. A step forward
stemmed from Pearce v United Bristol NHS Health Trust, a decision that inserted
terminology of the reasonable patient where it had not previously. This was followed by Birch
v UCLH NHS Trust that suggested an obligation to inform the patient of alternative
procedures, and Chester v Afshar that altered legal rules to give effect to autonomy,
recognising it required greater attention. The societal understanding of the doctor-patient
relationship also changed and developments emanated within the medical field. Prior to
Sidaway was the ingrained paternalistic culture that the ‘doctor knows best’ and patients
unquestioningly handed themselves over to the expert, which Professor Jones attributes to
the imbalance of power between the parties. To reflect the change from this perspective, the
GMC introduced detailed guidelines for informed consent, and thus the medical field
advanced beyond any standard that the law required. However, this led to discrepancy.
, Montgomery v Lanarkshire Health Board took the opportunity to change the test provided in
Sidaway and consequently provided a key judgment that considered material risk. It asked
whether a reasonable patient would consider the risk to be material, an objective lens; and
also whether the particular patient would consider the risk to be material. If so, information
had to be disclosed. The introduction of a subjective element, looking at the perspective of
the individual patient and their circumstance, refocused the emphasis of the doctor-patient
relationship. Patients were no longer viewed as passive recipients of treatment, care choices
were to be based on a shared decision-making process. This test mirrored that of Rogers v
Whitaker. The Supreme Court was acutely aware of the comparative positions in other
jurisdictions and recognised English law needed to accommodate the changes already
occurring in medicine. Despite offering a refreshing view of the doctor-patient relationship
and promoting active involvement on behalf of the patient, the decision in Montgomery was
not without its problems. Sarah Chan has discussed that Montgomery represents “a radical
move away from English law’s traditional respect for clinical expertise”. The judgment
outlined a patient needed to understand the information given to them, but no clarification
was given as to how the doctor can achieve this. If there is no demonstration of
understanding, potentially the information disclosed is redundant. It is understandably
frustrating to healthcare professionals, as the duty of doctors to assess the level of
understanding has not been framed. The unknown level of obligation imposed on a doctor
has the potential to go beyond the standard of reasonableness. The suggestion is that
reasonable steps can be taken to obtain understanding, but what these steps entail remain
unclear.
Another vague element is what is meant by material risk. The term is ambiguous. The
judgment determined that percentages should not be the key factor, but failed to clarify what
instead should be given attention. Inevitably, judges found solace in percentage rate
occurrence. A further issue relates to the subjective branch of disclosure. The precise
parameters placed on doctors to discover the circumstances of the particular patient are
undefined. Additionally, questions remain unanswered as to the scope of obligation to
disclose reasonable alternatives, and as to what constitutes a reasonable alternative. It is
impractical to expect a doctor to discuss every possible alternative. If a doctor feels
compelled to excessively disclose information for fear of legal action, this may be harmful
and deter patients from necessary procedures.
Moderate relief is provided for clinicians, under the therapeutic privilege exception. In some
instances, clinicians are entitled to withhold information if it is believed to be detrimental to
the patient’s physical or mental health. Ian Kennedy suggests it is a realistic mechanism that
can be relied on to exercise some discretion. However, despite being addressed in
Montgomery, the exact framework for this defence is not clarified. The case is not looked
upon fondly by medical professionals, as ultimately, it does not translate to a workable model
in practice.
Other wider issues have also been questioned. Montgomery only sought to address
preoperative disclosure, so uncertainty remains surrounding postoperative disclosure. This
leaves medical professionals susceptible to legal action, as illustrated in Spencer v
Hillingdon Hospital NHS Trust. Additionally, there is ambiguity regarding whether a change
of surgeon invalidates consent. In Jones v Royal Devon & Exeter NHS Foundation Trust, the
claimant was successful in establishing lack of consent. It was held to be inappropriate for
the patient to make a decision immediately preceding surgery, as there was inadequate time
for communication between parties, nor for free choice to be utilised. The practical impact
has been considered by commentators such as Sarah Devaney, highlighting that this will
lengthen hospital consent processes needed to fulfil obligations in a setting where time is a
precious commodity.
Whilst it is fair to say Montgomery was welcomed after the confusion caused by Sidaway
