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Consent: An Overview

Consent in healthcare has had its fair share of the legal spotlight in recent years, but the subject matter is not new; informed consent has been the subject of GMC guidance for some time and is seen to reflect good practice.

Then why do we still see so many claims from patients alleging a lack of informed consent? The answer, we suspect, is in the details. Specifically, the details given to the patient.

In order for a patient to provide informed consent, they must have the mental capacity to do so (which is decision-specific), be able to give it freely without pressure and have sufficient information to make an informed decision. 

The key issue, which has been the subject of fairly recent judicial commentary, is the question of whether a patient has sufficient information to make a decision. The case of Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430 specifically establishes a duty of care on a clinician to warn of ‘material risks’. 

In this case, the claimant, Nadine Montgomery, was diabetic and claimed that she was not advised of the risk of shoulder dystocia in pregnancy, which resulted in severe difficulties at birth. The doctor did not routinely advise of this risk in diabetic patients, as she was concerned that all mothers would then opt for a Caesarean section. 

It was found that the doctor ought to have advised the mother of the risk of shoulder dystocia and the option of a Caesarean section, on the basis that the mother should have been made aware of a material risk that she would have personally placed significance on.

So, what is ‘material’? 

The decision indicated that this is based on a reasonable person in the patient’s position and if they would be likely to attach significance to a risk, or that a doctor is or should be aware that the particular patient would be likely to attach significance to it. It is therefore not a one-size-fits-all approach and must be tailored to the individual patient in their circumstances. 

This does not mean that you must explain every single potential risk to a patient. In Mrs A v East Kent Hospitals NHS Foundation Trust (a Clyde & Co case) the failure to advise the risk of a chromosomal abnormality was not negligent, as that patient would not have attached significance to it. The Judge was clear that risks that were negligible or fanciful did not need to be explained.

Lessons learnt

  • In considering whether a risk is material, this should not only depend on how frequently it occurs. Bear in mind what would be significant to that particular patient.

  • It is not enough to only have a patient sign a consent form – it will help, but you must also satisfy yourself that you have communicated the material risks (and benefits) and alternative treatments (or the option of no treatment) and that the patient has understood it.

  • Bear in mind the GMC guidance about sharing information with patients

If you have any questions or comments in relation to this article please, contact Clyde & Co.

Claire Petts
Partner, Clyde & Co LLP
Claire.Petts@clydeco.com

Clyde & Co LLP and Premium Medical Protection Ltd accept no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2020

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