Brief thoughts on a change in consent case law…

I am interested in the way in which clinicians interact with patients to share information. One obvious example of this is in the discussion of treatment options, and I’ve published a small research project looking at the manner in which consultant psychiatrists address ideas of ‘shared decision making’ in relation to antipsychotic prescribing (Shepherd, A., Shorthouse, O., & Gask, L. (2014). Consultant psychiatrists’ experiences of and attitudes towards shared decision making in antipsychotic prescribing, a qualitative study. BMC Psychiatry. doi:10.1186/1471-244X-14-127).

There has been a recent court case, dealing with a tragic case where a young child was delivered with complications owing to a shoulder dystocia (difficulty in passing shoulders through mother’s pelvis). The mother was diabetic, a condition known to be associated with increased birth weight. She consulted with an obstetrician throughout her pregnancy but did not receive advice relating to the, approximately 10%, risk of shoulder dystocia should she deliver vaginally. The obstetrician appeared, in her dealings with the court, to place an emphasis on vaginal delivery as being ‘morally’ favourable as an outcome over caesarean section and therefore did not routinely disclose ‘small risks’ that would likely dissuade mothers from attempting to deliver ‘naturally’.

This is obviously a somewhat tenuous position and implies a degree of moral judgement by the clinician in relation to varying treatment decisions. What privilege does the clinician hold that allow them to pass moral judgements in relation to those in their care and their choices? I personally would argue none.

Previously in relation to disclosing information a doctor would be assessed in relation to the Bolam test for negligence. According to this position a doctor is not negligent when their practice is in keeping with the position held by a ‘body’ of medical opinion.

The court ruled in this more recent case however that the Bolam test was not an appropriate measure in relation to consent. Instead the doctor should provide information and take 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.

For me this is quite a complex shift in ruling. Simple offering of all available information is not likely to be seen as reasonable – instead a closer working dynamic between doctor and patient is required to ensure that all information that the patient requires is divulged in order that they can reach their decision.

I think this represents a desirable shift in emphasis towards collaborative working with the patient – however the manner in which it is implemented is going to require some greater thought and consideration.

Another future blog post perhaps…

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