INFORMED CONSENT which is an international accepted practice for all medical interventions and is implemented by the UK government via the NHS and the General Medical Council and supported by the law. It is recognised by the WHO and UNESCO. It is an important right that most UK citizens are unaware.
It is based upon the idea that a patient must be informed of the positive and negative impact of any medical intervention. An example is the current situation administering the experimental vaccines for SARS-COV-2 virus. Alternative treatments should be offered or the patient can refuse completely any treatment. I.e. Can say no.
In a Supreme Court judgement of Montgomery v Lanarkshire (2015) changed the standards of consent and gave more clarity and a better outcome for the patient in the UK.
The key passages from Montgomery Judgement state:
“…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 alternative 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.”
This link explains informed consent and the significance of Montgomery vs Lanarkshire Health Board mentioned above and its far reaching impact.
Case Law Summaries
In the “Key UK Legislation and Case Law Relating to Informed Consent” download are listed 6 court cases from Page 5 onwards that were brought against the Government and what the General Medical Council (GMC) has recommended to all the Doctors in the UK. Each selected court case covers informed consent in various situations including were a man denied medical staff to amputate his leg even though he might die. It was his right to do so said the courts.
The Outcome of Montgomery Court Case
Before Montgomery, a doctor’s duty to warn patients of risks was based on whether they had acted in line with a responsible body of medical opinion – known as the “Bolam test”. Now, doctors must provide information about all material risks to which a reasonable person in the patient’s position would attach significance. This puts the patient at the centre of consent process, as their understanding of material risk must be considered. If doctors fail to properly discuss the risks and alternative treatments with the patient, this renders them personally responsible for damages.
Details on Page 4 from GMC Key Facts Key UK Legislation and Case Law Relating to Informed Consent”
Montgomery v Lanarkshire Health Board  UKSC 11
The duty to make sure that patients are aware of any material risks involved in treatment and any reasonable alternative treatment options
Mrs Montgomery, a diabetic woman, was told that she was having a larger than usual baby. She expressed concerns throughout her antenatal care that this might lead to difficulties in delivery. Her consultant did not tell her about the risk of the baby’s shoulders being unable to pass through the pelvis during delivery
(shoulder dystocia) or discuss the option of a caesarean section. The consultant withheld this information on the basis that, in her estimation, the consequential risk of serious injury to the baby was very small.
During delivery shoulder dystocia occurred and the blood flow through the umbilical cord was compromised. After birth the child was diagnosed with cerebral palsy, which had been caused by oxygen deprivation. He also suffered a brachial plexus injury.
The Supreme Court held the following.
* An adult with capacity is entitled to decide which, if any, of the available forms of treatment to undergo.
* Doctors are under a duty to take reasonable care to make sure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
* The test for materiality was whether, in the circumstances, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should have been reasonably aware that the particular patient would be likely to attach significance to it.
* A doctor’s advisory role involves making sure that the patient understands the seriousness of their condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that they can make an informed decision.
* Doctors are entitled to withhold information about risk from a patient if they reasonably consider that its disclosure would be seriously detrimental to the patient’s health. This is a limited exception and doctors must not withhold information because they think it might cause the patient to opt for
treatment that the doctor does not consider is in the patient’s best interests.
General Medical Council Guidance – Decision Making and Consent (2020)
This states that doctors MUST attempt to find out what matters to patients, so they can share information about the benefits and harms of proposed options and reasonable alternatives.
Note the word MUST makes this a legally binding directive.
GMC Guidance states doctors MUST address the following information:
a) Recognise risks of harm that you believe anyone in the patient’s position would want to know. You’ll know these already from your professional knowledge and experience.
b) The effect of the patient’s individual clinical circumstances on the probability of a benefit or harm occurring. If you know the patient’s medical history, you’ll know some of what you need to share already, but the dialogue could reveal more.
c) Risks of harm and potential benefits that the patient would consider significant for any reason. These will be revealed during your discussion with the patient about what matters to them.
d) Any risk of serious harm, however unlikely it is to occur.
e) Expected harms, including common side effects and what to do if they occur.
Peace and Grace