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Patient Consent and Medical Advice

In a unanimous ruling in March 2015, the Supreme Court agreed that Nadine Montgomery should succeed in her claim against the Lanarkshire Health Board. Nadine had given birth to a boy who developed severe disabilities stemming from complications during the birth in October 1999.

Mrs Montgomery won over £5 million compensation in her major damage suit after her son suffered brain damage due to birth complications, claiming that medical professionals neglected to fully inform her of the risks involved with giving birth as a type 1 diabetic. It is recognised that when diabetics give birth to babies that are larger than average, it puts those mothers at higher risk of complications.

The Supreme Court ruled in favour of Mrs Montgomery and against NHS Lanarkshire after it was established that medical professionals should have informed her of the risks of shoulder dystocia (a complication during birth when the baby’s shoulders are too wide to pass through the pelvis of the mother). They should have discussed the option of a Caesarean section as a potentially safer alternative to the natural birth.

Changes Since Montgomery

Following the ruling, Montgomery’s Lawyer labelled it “the most significant medical negligence judgement in 30 years” after it was revealed that changes would be made by UK health boards in regards to patient consent going forward.

As a result of the case, consent from the patient – or an adult of sound mind – must now be obtained before any treatment that interferes with the integrity of her body is undertaken. It is the doctor’s duty to take reasonable care to ensure the patient is made aware of any material risks that may present in any recommended treatment and of the reasonable alternative treatments that are available. 

The doctor must discuss any risks and alternative methods of treatment with the patient in order to fully advise so that the patient can make an informed decision. The patient can, however, choose not to be informed of alternatives or risks.

Future Litigation

The Supreme Court hopes that making patients aware of potential risks and respecting patients’ right to decide their own course of treatment before any is undertaken will encourage them to take responsibility for their choices and, in the event of anything going wrong, this may discourage any future litigation.

While acknowledging that this ruling could likely result in more litigation going forward, the Supreme Court considers that the protection of patients from potential injury or risk they otherwise would have avoided by choice and the respect of the patients’ dignity will prevail.

Future litigation could arise from defining what constitutes a material risk and how responsible doctors are as far as looking into the patients’ backgrounds to determine whether they are reasonably aware of choices being made. Further litigation could come from questions relating to whether the patients fully understood the information given to them and appreciated the risks involved when giving consent. 

The passing of the new consent laws puts additional pressure on medical professionals as they now must make sure that any and all relevant matters are discussed in depth with their patients so as to avoid missing anything the patients could attach significance to. 

Record keeping will become more important and essential than ever, as clinicians will be required to record the treatments and risks associated that have been discussed with the patient for their patients’ protection and also their own, should any future litigation arise.

If any patients decline to be informed of any risks or alternative methods of treatment, this should also be recorded.

While taking a defensive approach to prevent future litigation is not ideal, it is the safest option currently for medical professionals until further clarification on the law is passed.

 

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