Last year in the United Kingdom a landmark judgment was handed down by the UK Supreme Court going to the heart of the surgeon/patient relationship and the consent process. The matter involved proceedings brought by a woman whose son was born with cerebral palsy as a result of complications that arose during his delivery, namely shoulder dystocia.
The case focused on the doctor’s failure to disclose risks of a vaginal delivery to Ms Montgomery in light of the fact that she had gestational diabetes and was therefore at risk of having a large baby with an associated increased risk of shoulder dystocia (about 10% risk). Comments were made by the Supreme Court regarding the consent process.
The Supreme Court delivered a judgment in which it noted how “unreal” it was to place the responsibility on patients to ask about potential risks, finding that “the patient is entitled to be told of risks where that is necessary for her to make an informed decision whether to incur them”. It spoke of the test regarding information regarding material risks to be provided to the patient, as follows:
“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 likely to attach significance to it.”
The Justices went on to say that a variety of factors need to be considered, such as the nature of the risk, the effect on the life of the patient, the importance to the particular patient of the benefits of particular treatment, and any possible alternatives and risks associated with those.
The Court found that the doctor, in this case, was under a duty to disclose the risk of shoulder dystocia to this particular mother, given it is a major obstetric emergency which involves significant risk to the mother’s health. The doctor should have explained why the doctor believed that a vaginal delivery was medically preferable to a caesarean, having taken care to ensure that the mother understood the considerations for and against those options. It found that if she had been informed of the potential risk of shoulder dystocia, and the risks associated with a caesarean section, this particular woman would have probably chosen to have her baby delivered by caesarean section.
The judgment has been praised and criticised, attracting a huge amount of commentary, particularly in the United Kingdom.
The Royal College of Surgeons of England has now published, as a result, the document entitled “Consent: Supported Decision-Making. A Guide to Good Practice” (The Guide).
While the Montgomery decision is not binding on Australian Courts and the Guide is not binding with respect to Australian Clinical Practice, both the Montgomery decision and the Guide represent a good indication of where the Courts are heading in modern times with respect to the process of medical practitioners obtaining consent from patients. That is, further and further array from the paternalistic “doctor knows best” approach of times gone by and into an era of a conversational and holistic/whole-of-person approach.