Published 14 March 2017
A patient-focused approach to consent for medical treatment has been required by the law ever since the landmark Supreme Court decision in Montgomery almost two years ago.
Applying this principle in the recent obstetric case of Webster v Burton Hospitals NHS Foundation Trust, the Court of Appeal found that a child's severe brain damage would have been avoided if the option of an earlier delivery (including the risks and benefits of this option) had been explained to the mother as it should have been.
This re-affirms the post-Montgomery law on consent to treatment, including the need to explain risks material to the particular patient concerned and the need to set out reasonable alternative treatment options.
The case also touches on how the patient's approach to decision-making may impact on what information is given to a particular patient about risks and treatment options.
What was the case about?
This was a brain damaged baby case about a child born with cerebral palsy and profound physical and cognitive impairment. The case turned on the timing of delivery and advice given to the mother about this.
The mother had been admitted to hospital at around 32 weeks with a headache and some bleeding. Clinicians wanted to admit her for 24 hour observation and explained the risk of placental abruption, but the mother explained that she was anxious and in any event lived near the hospital if anything happened. She therefore took the decision to sign a discharge form and return home, which she did without incident.
An ultrasound scan at around 34 weeks showed some abnormalities - the baby was small for dates with excess liquor, plus there was asymmetry of the head and abdomen circumferences. Evidence submitted in the course of the case indicated that information was emerging at the time to suggest increased risks to the baby associated with this combination of features. However, the treating obstetrician did not note these abnormalities or arrange any further ultrasound scans which, it was admitted, should have happened.
The day before her due date, the mother was admitted to hospital again feeling unwell. She was seen by her consultant who said she was well enough to go home, with a plan to come in for induction at 41 weeks if labour had not begun spontaneously by then. She was not given the option of being induced there and then.
In the event, labour was induced over 10 days later and the baby was born with severe brain injury, thought to have happened in the last 2 or 3 days prior to delivery due to cord compression.
The mother's case was that she should have been offered induction at term and, if she had been, she would have gone with that option and the baby would have been fine.
What does the law say?
Before the law was changed by the Supreme Court in 2015 in Montgomery, the legal test for consent to treatment was the 'Bolam' test - i.e. did the consent process accord with the practice of a responsible body of clinicians?
However, the duty on clinicians is now to take reasonable care to ensure the patient is aware of any material risks involved with any recommended treatment and any reasonable alternative treatments. The test for when a risk is "material" is whether a reasonable person in the patient's position would be likely to attach significance to the risk, or whether the doctor is (or should be) aware that the particular patient would be likely to attach significance to the risk.
What did the Court decide?
This case was initially heard by the High Court before Montgomery and was therefore decided on the old law - i.e. whether the information provided to the mother about risks and options would be supported by a responsible body of clinicians. On that basis, the court decided it was reasonable for the consultant not to have put forward earlier induction as an option. The claim against the hospital therefore failed.
However, by the time the matter was heard on appeal, the law had changed. The Court of Appeal applied the new patient-focused legal test and found that, if there had been a proper dialogue with the patient, the consultant would have advised that there was some emerging evidence of increased risks associated with waiting until 41 weeks and, even if the mother had also been told about the arguments in favour of not intervening, she would have wanted labour to be induced at around the time of her due date.
Factors taken into account by the Court of Appeal in reaching this decision included the mother's "clear evidence" that she would have wanted the baby delivered if there was any suggestion of risk, plus "her background (a university degree in nursing)" and her "willingness to take responsibility for her pregnancy", as demonstrated by her decision to leave hospital when she was admitted at 32 weeks and her reasons for that decision.
This case essentially re-affirms the patient-focused approach to consent as required following Montgomery.
It is notable that the Court was keen to take into account the patient's approach to previous decisions about her care and her relevant educational background. This was perhaps not dissimilar from the situation in Montgomery (which was also an obstetric case and related to whether a caesarean section should have been given as an option in light of shoulder dystocia risks), with the mother in that case being a hospital specialist for a pharmaceutical company with a degree in molecular biology and, according to the Court, "a clearly highly intelligent person".
When tailoring the consent process to the individual patient, it seems clinicians should therefore be factoring in matters such as relevant educational background and past approach to decision-making about their care
How we can help?
Our national team of healthcare regulatory lawyers have extensive experience of advising NHS and independent sector providers and clinicians on all aspects of healthcare law, including advising on consent policies and matters relating to capacity and consent in individual cases.
We can also provide bespoke training in relation to all aspects of consent to treatment.