Informed Consent

A recent change in the law means that if you were not given information about all of the material risks associated with a procedure that you have undergone, and you have gone on to suffer harm as a result, you may be able to successfully pursue a clinical negligence claim.

For many years patients’ rights organisations have been calling for a change in the way that medical practitioners deal with consent issues but Montgomery v Lanarkshire Health Board has answered these calls by fundamentally changing the law relating to informed consent.

Prior to these changes the courts have approached cases where patients argued that they did not provide informed consent for their medical procedure from the perspective of a reasonable doctor.

In 1957 the case of Bolam v Friem Hospital Management Committee established the principle that a doctor would be negligent if he failed to act in accordance with a practice accepted as proper by a responsible body of doctors specialising in the same field.

This was followed by the 1985 case of Sidaway v Board of Governors of the Bethlem Royal Hospital which held that the same test applied to informed consent cases. A doctor would only be found negligent if no prudent medical practitioner would fail to warn a patient of the risks inherent in proposed treatment.

The effect of these cases was that medical practitioners could point to a signed consent form as evidence that a patient had been given particular advice, or argue that the percentage chance of a particular risk occurring was so small that it was not sufficiently relevant to mention.

Since these cases were decided patients have become increasingly better informed and more able to understand medical issues following the advent of the internet and social media. Individuals are less dependent on their doctors for information about the procedure they are about to undergo and are capable of understanding and processing a greater amount of information about the risks and the potential consequences that they could face.

However, in 2015 Montgomery v Lanarkshire Health Board changes the way we view these cases. In 1999 Mrs Montgomery gave birth to a baby boy. As a diabetic of small stature, and being aware that babies of diabetic mothers can be larger than average, Mrs Montgomery expressed concern about her ability to deliver the baby vaginally. Mrs Montgomery was reassured by her doctor that all would be well. In fact there was a 10% risk of shoulder dystocia and the potential to avoid this risk by arranging delivery by way of elective caesarean section, but Mrs Montgomery was not warned about the risk or told about the alternative options.

During the delivery the baby’s shoulder became stuck, there was a 12 minute delay in freeing him and he suffered a brain injury and paralysis of an arm as a result. Mrs Montgomery successfully argued that she ought to have been told of the risks and alternative treatment option, that if she had been told she would have elected for caesarean section, and that this would have avoided her son’s injuries.

The Supreme Court held that a doctor must make patients aware of any risks that a reasonable patient would think were material, and of reasonable alternative treatments that could avoid or minimise that risk.

Materiality is measured by whether a reasonable person in the patient’s position would be likely to attach significance to it, or if the practitioner is or should reasonably be aware that the patient is likely to attach significance to it. Each case will therefore turn on its own facts because there is now an objective test focussing on what a reasonable patient would have regarded as material.

If you have concerns about lacking informed consent for a medical procedure undertaken within the last three years and you would like to enquire as to whether you might have a clinical negligence claim please call 0161 785 3500 or email us at enquiries@pearsonlegal.co.uk