DOI: 10.12809/hkmj154594
© Hong Kong Academy of Medicine. CC BY-NC-ND 4.0
COMMENTARY
An important update on medical consent
David SY Wong, MB, BS, LLB (London)
Department of Surgery, The Chinese University of Hong Kong, Prince of Wales Hospital, Shatin, Hong Kong
Corresponding author: Dr David SY Wong (sywong@surgery.cuhk.edu.hk)
The central tenet of consent in medical practice
is that the patient understands the options and
their risks and benefits. This in turn facilitates free
choice by the patient of what will be done and is in
accordance with the fundamental human right to
exercise autonomy over one’s own body. In addition
to good medical practice, proper consent is a legal
requirement and can be the most important pitfall in
allegations of assault or clinical negligence.
As a result of the landmark decision of the
Supreme Court of the United Kingdom of 11 March
2015, Montgomery v Lanarkshire Health Board,1 the
law of consent has radically been updated. This is
going to have far-reaching implications for medical
practice in all common law jurisdictions.
As is usual with litigation for clinical
negligence, the events involved an unfortunate story.
A 5-feet-1-inch tall insulin-dependent diabetic with
an understandably large-size fetus had asked her
obstetrician whether there were any anticipated
difficulties in vaginal delivery. It was the testimony of
the obstetrician in court that she was concerned that
the patient would have elected to have a caesarean
section, had she been warned of the approximate
10% risk of shoulder dystocia. The obstetrician thus
acted in what she perceived to be the patient’s best
interests and did not advise her of the risk. Sadly
during delivery, the baby suffered brachial plexus
injury and anoxia which resulted in permanent
neurological damage.
There should be no undue influence or
withholding of information when obtaining medical
consent. But how often it is heard ‘It is a matter of
how you explain to the patient!’. Well-intentioned,
caring, and empathic doctors not uncommonly have
a tendency to present their explanations skilfully
in such a way that the patient is guided to make a
decision that is believed by the doctor to be in the
patient’s best interests. Is this genuinely providing
the patient with free choice? Is the doctor imposing
his opinion and thus decision on the patient?
The English law governing consent has
hitherto been exemplified by the previous landmark
judgement in Sidaway v Board of Governors of the
Bethlem Royal Hospital2 in 1985. In this important
decision, the Law Lords instrumentally extended
the Bolam standard,3 applicable to alleged mistakes
in diagnosis and treatment, to the arena of medical
consent. They explicitly reserved the final decision
of what needed to be disclosed to patients for the
purpose of obtaining consent to be ‘primarily a
matter of clinical judgement’. Only when specifically
asked by a patient for details on a particular aspect
was the doctor required to provide full information
about it. The transatlantic ‘fully informed consent’
approach was not accepted and doctors were to
inform patients what, in their opinion, patients
should know and what most other doctors would
disclose in similar circumstances.
This is now history. What Montgomery
handed down is that by selectively filtering some
information from the knowledge of the patient and
subtly leading the patient towards making a certain
choice, the patient is actually deprived of the right
of autonomy in making his/her own choice. That is
not genuine consent of the patient and it is not what
obtaining consent is about. There is also no room
for waiting for the occasional inquisitive patient
to voice a concern before details are provided. The
doctor should volunteer information to which a
reasonable patient would attach significance, taking
into account the circumstances of the patient.
Does this mean that we are now adopting the
‘fully informed’ consent approach? I suspect that the
answer is no. It is not a broad-brush requirement of
everything related to the intervention, but that to
which the prudent patient would attach significance
and that the doctor knows or should reasonably
know is relevant. And so this is now the test for
whether a doctor has fulfilled his/her duty of care
on risk disclosure in the obtaining of consent. The
Bolam standard of whether the withholding of
certain information, for example where a risk is lower
than a certain arbitrary percentage, is ‘in accordance
with a reasonable body of medical opinion’, becomes
immaterial. This is really a patient-centred approach
and is the modern approach already adopted in
American and Australian judgements widely known
as the ‘prudent patient test’. The paternalistic view
of ‘doctors know best’ or ‘putting oneself in the
good hands of the doctor’ belongs to the past.
Adult patients with adequate mental capacity can
and should decide for themselves and have their
right to do so protected by the law. Colleagues are
well aware that this right of choice is not limited
to decisions that others might regard as sensible. It
exists notwithstanding that the reasons for making
the choice are rational, irrational, unknown, or even
non-existent (per Lord Donaldson, Re T (Adult)4).
To put it another way, the previously favoured
‘prudent doctor approach’ would have the doctor
decide, using his/her clinical judgement, what the
patient should know, including frequent or serious
risks. The now adopted ‘prudent patient test’ requires
the doctor to disclose what he can reasonably see
as information that is significant in the patient’s
evaluation in decision-making. The doctor is no
longer the person to decide what should be disclosed,
it is dictated by the patient’s needs from the latter’s
perspective. A good illustration of the last point is the
case of Rogers v Whitaker5 where the doctor had failed
to disclose the rare 1 in 14 000 risk of sympathetic
ophthalmia to a patient undergoing surgery on her
blind eye to improve appearance. The patient became
totally blind due to this rare complication.
The judgement also reminded practitioners
not to abuse the ‘therapeutic exception’ to withhold
information where the release of certain information
might be detrimental to the wellbeing of the patient.
Patients are no longer passive recipients of
medical care. They participate in and are responsible
for their own decisions. The new legal requirements
have brought standards of consent in line with
today’s socio-cultural scenario.
The Supreme Court of the United Kingdom is
the highest tier of the court system and one of the
last resorts for any appeals from the lower courts.
It assumed the judicial functions of the Appellate
Committee of the House of Lords in 2009 as the new
court of final appeal in the United Kingdom.
In conclusion, between professional opinion of
what is best and the true exercise of a patient’s right
to choose, the latter prevails. The doctor is obliged to
take reasonable care to ensure a patient understands
the material risks in proposed interventions
including those of viable alternatives. A ‘material
risk’ is one to which a reasonable patient in his/her
circumstances would attach significance. Good and
effective communication remains vital.
References
1. Montgomery v Lanarkshire Health Board, UKSC 11 (2015).
2. Sidaway v Board of Governors of the Bethlem Royal
Hospital, AC 871 (1985).
3. Bolam v Friern Hospital Management Committee, 1 WLR
582 (1957).
4. Re T (Adult), 4 All ER 649 (1992).
5. Rogers v Whitaker, 175 CLR 479 (1992).