Informed Consent: Doctor knows best?

28 April 2015

Nikki McConnell, Partner, considers how much information a Doctor is required to give a Patient when seeking their consent.

Medicine is not an exact science.There are no guarantees as to the outcome for Patients, and there are always side effects of drug therapies and surgery to take into consideration when Doctors are making decisions as to the best or most effective treatment to recommend to a particular Patient.

As Doctors require Patients to consent to treatment, the question arises as to how much information a Doctor is required to give a Patient when seeking their consent.Consent must be informed,but how much detail a Doctor is required to reveal in terms of risks and possible side effects, has always been a difficult issue for Doctors, Patients, and as a consequence, the Courts.

A House of Lords decision in a case called Sidaway in the 1980s, established that it was a matter for Doctors to decide how much to tell Patients about the risks of treatment, and you could not sue a Doctor in negligence for failing to inform you of a risk, if other reasonable Doctors would not have informed you of that risk.Essentially, this case supported the ‘Doctor knows best’ idea.

However, this principle has been overturned very recently in the case of Montgomery V Lanarkshire Health Board. In this case, the UK Supreme Court overturned the Sidaway Judgment and failed to follow this approach.The 7 Judges sitting in the Supreme Court recognised that there are many sources of information available to Patients now, such as the internet and Patient Support Groups, and felt that Patients should be involved much more in making their own treatment decisions. Although on one view, this ruling places a greater burden on Doctors to ensure that patients are fully aware of risks before they make decisions, it also places on Patients the responsibility for taking risks that will affect their own lives, and they must live with the consequences of their choices.

There is one exception, the ‘therapeutic exception’ , which allows Doctors to reasonably withhold information about risks from Patients, if the disclosure would do serious detrimental damage to the Patient’s health.The Court emphasised that this exception should only be used in limited circumstances, and should not be used in a situation where a Doctor feels that a Patient may make a decision which the Doctor believes is contrary to the Patient’s best interests, if fully informed about risks.

The Montgomery decision means that the Courts expect Doctors and Patients to work in Partnership, with Doctors listening to Patients views and addressing their concerns, so that they have the information they want and need to make decisions about their health.

Nikki has considerable experience of representing both Plaintiffs and Defendants in a wide variety of litigious matters including Public and Employers Liability cases, Road Traffic Accidents and Medical Negligence actions. She has particular expertise in handling significant brain and head injury cases and has a special interest in Educational Law.

She also heads the Criminal Law Department and represents private clients in all types of Criminal matters, as well as Local Councils in the Defence of Health & Safety Prosecutions.

 

You can can contact Nikki for free initial advice regarding a medical negligence query on 02891811538 Ext 215 or email:  nikki@worthingtonslaw.co.uk 

 

 

 

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