Understanding Informed Consent in Clinical Negligence Claims

Informed consent is a crucial aspect of medical practice and patient care. It ensures that patients understand the risks, benefits, and alternatives of proposed treatments, enabling them to make informed decisions about their healthcare. When this process breaks down, it can lead to claims of negligence.

Clinical Negligence expert, Greg Porter, outlines the legal framework surrounding informed consent and how case law has reshaped this area.

The Bolam Test and Clinical Judgement

Historically, courts determined whether there had been clinical negligence by applying the Bolam test, established in the case of Bolam v Friern Hospital Management Committee (1957). This test provides that a medical professional is not negligent if their actions align with a responsible body of practitioners in their field.

In other words, it is not sufficient to prove that another clinician might have acted differently in similar circumstances. To succeed in a claim, the actions of the accused clinician must fall outside the scope of what any responsible medical opinion would deem acceptable.

Before 2015, the Bolam test extended to cases of informed consent. For instance, in Sidaway v Board of Governors of Bethlem Royal Hospital (1985), the court held that doctors could use their clinical judgement to decide which risks to disclose to a patient. If the risks communicated matched what a reasonable body of practitioners would have disclosed, the doctor was deemed not negligent, even if undisclosed risks materialised.

A Landmark Change: Montgomery v Lanarkshire Health Board (2015)

The legal landscape for informed consent shifted significantly with the Supreme Court’s decision in Montgomery v Lanarkshire Health Board (2015). This case highlighted the importance of considering a patient’s perspective and the material risks that might influence their decision-making.

The Background

The Claimant, a diabetic woman of small stature, was at an increased risk of shoulder dystocia were she to give birth naturally. Despite raising concerns about the size of her baby and the potential complications of natural childbirth, her doctors did not inform her of the 9–10% risk of dystocia or the 0.1% chance of cerebral palsy. They believed it was in her best interests to avoid a caesarean section.

The Claimant went on to have a natural birth, during which there were complications, and her son was born with cerebral palsy resulting from shoulder dystocia.

The Supreme Court found that, had the Claimant been informed of these risks, she would have chosen a caesarean section, and her son would have been born without injury.

The Court’s Decision

Overturning Sidaway, the Court decided that the doctors should have warned the Claimant of all material risks to which a reasonable person in the Claimant’s situation would attach significance. This case underscored the importance of transparency and respect for patient autonomy. Even if a doctor’s actions align with accepted medical opinion under the Bolam test, failure to adequately inform a patient of the risks can still constitute negligence.

In this case, the Claimant was awarded over £5 million in damages. This decision reaffirmed that informed consent is not just a medical formality but a fundamental right of patients.

Why Informed Consent Matters

The Montgomery case serves as a reminder that the process of obtaining consent is as important as the treatment itself. Patients should feel empowered to make choices based on comprehensive information about the potential risks, benefits, and alternatives of any medical procedure.

 

How Butcher & Barlow Can Help

Clinical negligence claims, particularly those involving informed consent, or lack thereof, can be highly complex. At Butcher & Barlow, our experienced Clinical Negligence Team is here to guide you through the process with empathy and expertise.

If you believe that you or a loved one may have a claim, we offer a no-obligation discussion to explore your options. Please contact Greg Porter on 01606 47523 or email gporter@butcher-barlow.co.uk if you would like any advice.