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Any reasonable doctor would disclose such information about the

nature of the treatment, the risks associated with it, the


prognosis, and the potential consequences of not having the
treatment as a reasonable patient would want to know. Whether
the patient wants to undergo the treatment is a matter for her
own judgment. This much is clear, in principle. The problems
come when the doctor does not inform the patient about all the
risks and the patient does not know what she would have done
even if the doctor had informed her.

With reference to decided cases, discuss this statement and


assess whether it is an accurate summary of the position in
English law.

Informed consent is currently a widely accepted practice. It is a


concept that arises as Beuchamp and Childress put it in Principles of
Biomedical Ethics from the ethical principle of patient autonomy. There
are of course also views that it also arises from the principle of basic
human rights. Disclosing information to the patients by hook or crook has
not been the original or the longest practice in the clinical process. This is
because the Hippocratic Oath demonstrates that it is the doctors duty
according to their ability and judgement to consider for the benefit of
their patients. Further, Hippocrates has placed more emphasis for doctors
to conceal information from their patients and the advice was to turn the
patients attention away from what is being done to him;revealing
nothing of the patients future and present condition.
In some instances from centuries ago consent was deemed
necessary such as in the case of Slater v Baker(1767) whereby the court
held that it should not only be a professional conduct for a doctor to seek
consent before re-fracturing the patients leg, it is also important so that
the patient would take courage and put himself in such a situation as to
enable him to undergo the operation. However, it was not until the
twentieth century that the idea that doctors must disclose as much
information as possible to the patients came about. This is mainly to allow
the patients to have control on their own hands to some extent so as to
give effect to the growing idea of patient autonomy. Moreover, it is also
opined that disclosure of information could bring a balance between the
doctor-patient relationships. As Michael Jones puts it in Informed Consent
and Other Fairy Stories (1999), part of imbalance between doctor and
patient is due to the patients lack of information, and, on one view, it is

the function of the law to redress the imbalance by providing patients with
the right to be given that information, or perhaps more accurately
imposing a duty on doctors to provide it.
The idea of disclosing information to the patient has therefore
developed through the years, and in many cases the courts have
improved the legal position regarding this matter. Hippocratic model was
then replaced with partnership model. The rationale was, apart from
respecting patient autonomy; allowing patients to decide as to what they
want to be done to their bodies have become more possible with the
advances in medical technology.
In order for consent to be legally valid, the patient must give the
consent validly, have the capacity to give the consent and thirdly they
must understand the nature of the treatment in question. The idea of
informed consent is one that is derived from the third of these
requirements. All three of these requirements have to be proved in order
to establish consent, and failure to prove this would hold the medical
practitioner in question to be liable under battery. In fact, in R v Brown
[1994], Lord Templeman treated consent as a defence to battery.
Although obtaining an informed consent has often regarded as an
ethical obligation, the English Legal System has been active in asserting
that it is also a legal obligation, through the various case laws that have
been decided before the courts.
One of the cases is Chatterton v Gerson [1981]. In this case, the
court established that the information required for there to be a valid
consent is largely similar to that of battery. Justice Bristow in the Queens
Bench Division stated that in order to succeed in trespass, the claimant or
rather the patient has to show that there has been a lack of real consent,
but if the patient has been informed in broad terms of the nature of the
procedure which is intended, and given his consent, that consent is real.
This case has also seemingly emphasised that a mere fact of signing the
consent form does not establish a complete consent, making the provision
of information a more important factor to determine consent.
It is also important to note that it is sufficient so long as the
claimant has understood the nature of the procedure in broad terms in
order to consent to the procedure, to have derived the information for a
source other than the doctors themselves. Therefore, an action in battery
would only be applicable where the doctor has treated the patient against
her will. This is along with the statement by Lord Diplock in Sidaway v
Bethlem Royal Hospital [1985], that consent to what would otherwise be a
battery is a state of mind personal to the victim of the battery.

What happens when the information used is intended to mislead the


patients into giving consent? Many criminal cases held that apparent
consent will be invalid if a person is misled about the nature and quality
of a treatment or procedure, sometimes even the identity of the medical
practitioner.
For example, in Appleton v Garret [1996] a dentist conducted a
large scale, unnecessary treatments on patients, and was found liable
under battery on the grounds that his patients consents were not real,
because had they known the true intentions of the dentist, they would not
have consented to the treatments.
Apart from battery, performing medical procedures on an
inadequately informed patient may also lead to an action in negligence,
upon the establishing of the duty of care, breach of the duty and
causation. One question that is significant in this regard is What
information must a doctor disclose to avoid liability in negligence?
Justice McNair in Bolam v Friern Hospital Management Committee
[1957] applied the same standard of care to the claim of failure to disclose
the risks associated with a procedure as he did to a claim that involved
negligence by the defendants in the administration of a treatment, the
standard of care required off a reasonable man.
However, in Sidaway v Bethlem Royal Hospital [1985], although
other judges were prepared to apply the Bolam test with Lord Bridge and
Lord Templeman slightly modifying it, Lord Scarman however was not
prepared to apply the Bolam test. The case involved Mrs Sidaway who had
been partially paralysed by an operation to remove recurrent pain in her
arms and shoulders, which carried a risk of injury to the nerve root or her
spinal cord of one to two percentages. Mrs Sidaway claimed that had she
been informed of this risk, she would not have consented to the operation;
however, the majority Lordships dismissed her appeal stating that the risk
was too little that many reasonable neurosurgeons would not have warned
her of it anyway.
Lord Scarman however was of the view that instead of looking at
what a reasonable medical practitioner would have disclosed, the
attention should be drawn to what a reasonably prudent patient would
want disclosed, subject only to therapeutic privilege, where a doctor
could still rely on a reasonable believe that disclosure of a risk would
prove psychologically damaging to a patient.
The House of Lords in Bolitho v City and Hackney Health Authority
[1998] supported the test saying that it does not simply take into account

any supportive experts opinions, but requires the medical opinion to have
a logical basis. Further, Lord Woolf in Pearce v United Bristol Healthcare
Trust (1999) supported Lord Bridges statement in Sidaway that a
significant risk is something that is in the region of ten per cent, failing
to consider a 0.1 to 0.2% risk of stillbirth to be significant enough. Lord
Steyn in Chester v Afshar on the other hand, stated that the patient has a
prima facie right to be informed of even a small, but well established risk
of serious injury that could result from a surgery.
The reasonable doctor test was substantially criticised to place too
much of a discretion on the medical practitioners and for its failure to
place sufficient importance on the right to self-determination of patients.
In fact, the Australias highest federal court in the case of Rogers v
Whitaker (1992) has demonstrated its disagreement with the test as early
as 1992, by applying the prudent patient test and finding the surgeon
negligent for failing to disclose a risk that is only slightly greater than one
in 14000, despite his action being supported by a body of medical opinion.
Although the Sidaway approach was endorsed by cases such Pearce
v United Bristol and Gold v Haringey Health Authority [1988] (where the
rule in Sidaway was applied to sterilisation for contraceptive purposes
rather than restricted to therapeutic procedures), however, the current
leading case on the disclosure of risks is Montgomery v Lanarkshire Health
Board [2015], rejecting Sidaway and its endorsement of Bolam. This is
because the reasonable doctor standard was gradually recognised to be
too paternalistic and there is risks of medical opinions agree to the
doctors conduct although the risk associated to it is significant.
Further, the prudent patient test endorsed by Lord Scarman is
uncertain especially to the medical practitioners as they will be expected
to focus on finding out what the patients would like to know instead of
focusing on disclosing the information they consider is important or
significant. The prudent patient test may however be helpful in cases
where there are other alternatives to a treatment that might carry lesser
or no risks, as that can be seen in Birch v UCL Hospital NHS Foundation
Trust [2008] where a doctor who had informed the patient of the
significant risks was held liable for negligence nonetheless simply because
there was an alternative procedure carrying fewer or no risks that the
doctor failed to inform to the patient.
In Montgomery, the test articulated is in the circumstances of the
particular case, would a reasonable person in the patients 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 case concerned Mrs Montgomery who suffered from insulin
dependent diabetes mellitus. It was agreed between the parties that the risk of
shoulder dystocia occurring during vaginal delivery was 9 -10% in the case of
diabetic mothers. She was not told of the risk of shoulder dystocia, as, in

the doctors opinion, the possibility of it causing a serious problem for the
baby was very small. The doctor also suggested that advising of the risk
would lead to most women electing for a caesarean section. During the
vaginal delivery the umbilical cord was completely or partially occluded,
thereby depriving the baby of oxygen. After his birth, he was diagnosed as
suffering from dyskinetic cerebral palsy. It was the Mrs Montgomerys case
that had she been told of the risk of shoulder dystocia she would have
elected for a caesarean section.
The Supreme Court in this case disagreed with the majority
judgement in Sidaway and was of the view that Lord Scarmans dissenting
judgement was more favourable. It was held that the doctor was under a
duty to take reasonable care to ensure that the patient is aware of any
material risks involved in proposed treatment, and of reasonable
alternatives. A risk was material if a reasonable person in the patients
position would be likely to attach significance to it, or if the doctor was or
should reasonably be aware that their patient would be likely to attach
significance to it. This is in line with the General Medical Guidance (GMC)
2008 whereby it was stated that doctors must share with the patients the
information that they want or need in order to make decisions. They
cannot simply make assumptions as to the information that the patients
may want to know.
Lord Kerr and Lord Reed reasoned that an adult of sound mind is
entitled to decide which, if any, of the available treatments to undergo,
and her consent must be obtained before treatment interfering with her
bodily integrity is undertaken. This is in favour of the patient autonomy
argument. The patient must also be informed of the reasonable
alternatives, especially when they carry fewer or no risk at all when
compared with the proposed procedures.
Lord Ordinary was of the view that if only had the doctor discussed
every details of the risk of the proposed procedure to Mrs Montgomery,
with the alternatives available, Mrs Montgomery would probably have
chosen the caesarean section, reducing the risk of the stillbirth. Lady Hale
was also somewhat of the same opinion, stating that the doctor should
properly weigh the advantages and disadvantages of the vaginal delivery
compared to a caesarean section and inform the patient about it.

The new test established in Montgomery therefore places a


significant emphasis on the patient autonomy principle, which not only is
ethical, but also respects basic human rights of patients.
Other jurisdictions have long introduced this in practice. For
example, Article 5 of the law on patients rights in Finland provides that a
patient shall be given information about his/her state of health, the
significance of the treatment, various alternative forms of the treatment
and their effects and about other factors in association with his/her
treatment that are significant when decisions are made on the treatment
given to him/her. It should also be given in a manner the patient could
understand. The similar is provided in Czechoslovakia, under Section 23 of
Law No.20 of 1966 concerning the protection of public health. The right to
information is heavily endorsed by any other jurisdictions, such as France
(Article 37 of the Code of Deontology), Germany, Greece (informed
consent must come without physical or psychological pressure), Hungary
and Iceland (Article 1 of the Physicians Act of 1988).
In conclusion, not only in the English Legal System especially after
the introduction of the new test in Montgomery, other jurisdictions too
have adopted the view that informing the patient about the nature of a
treatment, risks associated with it, the prognosis and potential
consequences of not having the treatment, is important in order to
respect the patient autonomy and their rights to bodily integrity.
Therapeutic privilege by doctors however may be required in some
circumstances where the patient is illiterate and expects the doctors to
make decision for her and also when the doctors think that the patient is
so fragile that a full disclosure would overwhelm her. For example, it may
be more acceptable to not inform a patient something that could trigger a
dangerous anxiety reaction.