Supreme Court: New guidance on Informed Consent
Informed Consent
Principle 3 of the GDC standards for dental care professionals states;
3.1. You must obtain valid consent before starting treatment, explaining all the relevant options and the possible costs
3.2. You must make sure that the patients (or their representatives) understand the decisions they are being asked to make
3.3. You must make sure that the patient’s consent remains valid at each stage of investigation or treatment.
The principle of Informed consent is a central tenet to the standards that all dentists must comply with.
Legal History of Informed Consent
The case of Bolam v Friern Hospital Management Committee established the ‘Bolam test’ for consent.
In Bolam the doctor employed by the Trust was accused of negligence, by failing to administer certain drugs during the claimant’s treatment. The claimant suffered harm as a result, and sought damages from the Trust.
High Court Judge McNair J directed the jury in this case: ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.’
Following this decision, the Bolam test became the new standard the medical profession had to satisfy in clinical negligence cases. The test required the medical professional to demonstrate that their actions regarding the medical advice given for their patient’s diagnosis were in line with other medical professionals within the same field and the same level of expertise.
However, in 2015, the Supreme Court moved away from the Bolam approach, towards a more patient centred care in the case of Montgomery v Lanarkshire Health Board.
Ms Montgomery had diabetes, she was not informed of certain the risks to her unborn child if she had a natural birth. Her baby suffered various injuries during the delivery, he was later diagnosed as suffering from cerebral palsy. It was accepted that had the doctor responsible for Ms Montgomery’s care advised her of the risks of a natural birth, it was likely she would have opted for a caesarean, which, if carried out at the outset, her son would have been born unharmed.
The Supreme Court ruling required a doctor to ensure that patients are aware of the material risks that the recommended treatment may pose, and what reasonable alternative treatments are available.
Doctor patient discussions cannot be measured by “a standard of experience and/or medical knowledge, especially if the information would be considered substantial in the patient’s decision-making”.
The Supreme Court stated in paragraph 87 of the judgment:
‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. Therefore, the doctor is responsible for taking reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’
The test moved away from the ‘reasonable doctor’ to the ‘reasonable patient’.
McCulloch and Ors v Forth Valley Health Board
In 2023, the Supreme Court looked at the issue again in McCulloch. The court considered both the Bolam and Montgomery tests, and asked the question:
What legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient?
Facts
The family of Mr Neil McCulloch brought a claim against Forth Valley Health Board, for damages following his death on 7 April 2012. It was alleged that his death was caused by the negligence of Dr Labinjoh, a consultant cardiologist. Mr McCullouch was admitted to hospital for a heart condition which was diagnosed as pericarditis. It is alleged that Dr Labinjoh should have advised Mr McCulloch of the option of treatment with a non-steroidal anti-inflammatory drug (“NSAID”) for pericarditis. The claimant’s claim was that had such advice been given, Mr McCulloch would have taken the NSAID, and had he taken the NSAID, he would not have died.
The Court was asked to decide whether the doctor, in this case, “acted in accordance with a practice accepted as proper by a reasonable body of medical opinion,”; i.e. the Bolam test.
Decision
The Court unanimously held that a doctor is not obliged to inform a patient of treatments that the doctor does not consider reasonable, even if an alternative body of opinion considers the treatment appropriate. The ‘professional practice test’ is the correct test to decide what is deemed as reasonable alternative treatment, as set out in Bolam. A doctor who believes a treatment is not a reasonable alternative for a particular patient will not be negligent in failing to inform the patient of that alternative treatment if a responsible body of medical opinion supports the doctor’s view.
The doctor believed that prescribing the specific medication in question to Mr McCulloch was not a reasonable treatment option because he was not in pain, which was one of the symptoms required to administer that particular treatment. Therefore, she did not breach her duty of care by not informing him of that possible option.
The Supreme Court added in paragraph (83), “For the reasons we have given, the professional practice test (derived from Hunter v Hanley and Bolam) is the correct legal test in determining what are the reasonable treatment options that a doctor has a duty of reasonable care to inform a patient about”.
The court gave helpful guidance on what clinicians have to consider when discussing treatment options.
• If there are ten possible treatment options, and a responsible body of medical opinion regards each of the ten as possible treatment options.
• A doctor, exercising their clinical judgment, and supported by a responsible body of medical opinion, may decide that only four of them are reasonable.
• The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments.
• The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied.
If you would like to discuss the contents of this article further, please call the team on 0207 388 1658 or email at lawyers@jfhlaw.co.uk.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
