Let's talk about consent ...

There are few issues more salient for our times than consent, however this is a side of clinical negligence work that most claimant lawyers shy away from, citing the difficulty of proving a failure to consent to medical treatment. It is one thing to criticize the consent process, but quite another to provide evidence proving that your client would have made an alternative decision had the process been conducted properly. This is of course especially the case when the injured party has since died or lost capacity.

All claimant clinical negligence lawyers will be aware of the huge breach of trust that their client's feel having been injured by their medical professionals. This generally manifests in the way an assault would, with a majority having some kind of psychological fall out from this breach of trust. This should not be surprising. These people have put their bodily integrity on the line (or that of their loved ones) and have been injured as a result by professionals that they quite rightly trusted. This is an intimate insult at a very basic level and often requires significant treatment to address.

Material Risks

In order for a patient to give informed consent, the clinician needs to understand who they are and what is important to them. For example, one cannot assume that a woman in her 20s is adverse to a risk to their fertility, or that a woman in her 40s is not. These matters are highly personal.

The issue of what a material risk is, and more importantly, who gets to decide which risks are material, was established in Montgomery, when the seismic shift away from paternalistic care to patient-centered decision making took place. It is now (fairly) settled law that the assessment of which risks are material is the preserve, not of the clinician, but of the patient (or the Judge). Therefore if you don't know who your patient is, and what is important to them as an individual, how could you possibly know which risks they will find acceptable or not?

Alternative Treatment

The recent case of Bilal & Malik v St George's University Hospitals NHS Foundation Trust [2023] EWCA Civ 605 delved into the thorny affair of which alternative treatments should be offered to a patient, including the alternative of no treatment. The debate at the heart of this is reasonableness - should the reasonableness of the alternatives offered be decided with reference to Bolam (a question for the medical professional) or by reference to Montgomery (a question for the patient/Judge)?

In this Judgment Davies LJ made the following comments:

"I accept the contention of the respondent that?Montgomery draws a distinction between two aspects of a clinician’s role, namely an assessment of treatment options (Bolam) and an assessment of what risks and treatment should be explained to the patient because they are material (Montgomery).?The distinction between the two roles of the clinician is contained within the judgment of Montgomery at para 87 where it is stated that: “the doctor is therefore under a duty to take 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.” I accept that “reasonable” in respect of the assessment of alternative or variant treatments encapsulates the Bolam approach. As to material risks, that is the element of materiality which is to be judged from the perspective of the patient?i.e. Montgomery. In my judgment?it is for the doctor to assess what the reasonable alternatives are; it is?for the court to judge the materiality of the risk?inherent in any proposed treatment, applying the test of whether a reasonable person in the patient’s position would be likely to attach significance to the risk. Thus the Judge at [93] was correct to apply Bolam and to conclude that his assessment reflected the guidance set out in para 87 of Montgomery."

Therefore, at the present time, the decision as to which alternative treatments are 'reasonable' is the preserve of the medical professional. However, this is an area in a state of flux, and the decision in the case of McCullouch v Forth Valley Health Board is yet to be handed down by the Supreme Court.

I would also highlight the following comment in the Judgment from Montgomery at [90]:

"…?the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision."

How to Proceed?

Consent to medical treatment is a very complex issue with a great deal of nuance and it should be approached on a case-by-case basis. So how is the busy clinician to ensure that they have properly consented a patient for treatment? And how should the claimant lawyer approach consent where there are clear issues with the process?

For the clinician I would say communication is key. It is not for you to decide what is important to your patient. If you do not have a dialogue with them, you will ultimately fail to establish what is important to them and fail to take informed consent. If your patient suffers a poor outcome for which they were not prepared, they will be hurt psychologically, in addition to their physical injuries.

Ensure that you know your patient understands your conversation. They may face challenges in understanding complex medical procedures or diagnoses. They may be illiterate. They may have a poor grasp of English. They may be neurodiverse. It is your responsibility to ask them questions to ensure that they understand.

It is never appropriate to consent a patient to major elective surgery on the day of that surgery. If buying a time share requires a 'cooling off' period, then so does consent to medical treatment.

Consent may be multidisciplinary and require multiple consultations so that a patient can truly understand what they are consenting to. If your colleagues need to get involved to achieve this, then get them involved.

Also, if you do not know what to do - tell them! And then refer them to someone who does.

For the lawyer I would say, plead failure to consent where you can. I abhor the general reluctance to plead failure to consent for 2 reasons:

1. It is important to the patients/clients! Body autonomy is key to psychological welfare. Even where an individual will struggle to prove that they would have pursued an alternative course if consented correctly, they should be given the opportunity to put allegations regarding a poor consent process to the defendant.
2. It is important to the clinicians. Medical professionals do not want to hurt their patients. Where the consent process is rushed and informed consent has not been obtained for treatment that has a poor outcome, patients are hurt. If these allegations are never put to Trusts or the clinicians involved, how are things to improve?