Prime
Court judgment in the case of a birth gone horribly bad
What you need to know:
- Dialogue: A patient must understand the magnitude of the condition, anticipated benefits, risks of the proposed treatment alternatives to make an informed decision.
- The lower courts had relied on the Bolam test of medical negligence. However, the Supreme Court ruled that this test was inappropriate in a case involving disclosure of risks and provision of alternative treatment.
In 2015, the Supreme Court of the United Kingdom overturned the decision of two lower courts in a case of medical negligence and a patient’s right to information to make an informed decision. The facts of the matter were that a doctor had not disclosed to the patient a particular risk involved with normal delivery and had also not offered the patient the alternative of a caesarean section.
The lower courts ruled against the patient when she took the health service provider to court for medical negligence. The lower courts had relied on the Bolam test of medical negligence. However, the Supreme Court ruled that this test was inappropriate in a case involving disclosure of risks and provision of alternative treatment.
Right to self-determination
The Supreme Court, in its judgment, relied on the developments in law, including the value of self-determination, the right of respect for private life and the duty to involve the patient in decisions regarding treatment. These laws point away from a model of health care relationship between the doctor and the patient based upon medical paternalism in which a patient is entirely dependent on information provided by the doctor.
The contemporary legal approach to health care provision is to treat patients, make them appreciate the fact that medical treatment is uncertain of success, may involve risks, accept responsibility for taking the risks affecting their own lives and living with the consequences of their choices. This differs from the approach of patients placing themselves in the hands of their health care providers and seeking legal redress in the event of disappointing outcomes.
Advisory role
Health care providers therefore, need to take reasonable care to ensure that patients are aware of material risks of injury inherent in treatment and decide whether or not to incur that risk. This advisory role cannot be regarded as an exercise of medical skill without the patient’s entitlement to decide the risks to his or her health and decisions which may be influenced by non-medical considerations.
The court also noted that the health care provider’s advisory role involves dialogue, the aim of which is to ensure that patients understand the seriousness of their conditions and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives in order to make a truly informed decision.
And this can only happen if the information provided can be comprehended by the patient. It is likely not to happen if the patients are bombarded with technical information which they cannot comprehend.
Therapeutic exception
The Supreme Court also noted a scenario in which a patient may decide that he or she does not wish to be informed of the risks of a medical procedure. In such a case, a health care provider is not obliged to discuss these risks.
There may also be a situation where the health care provider considers that disclosure of particular information would be detrimental to the health of the patient. This is known as the therapeutic privilege or exception, but to court this cannot provide the basis of the general rule. To court the therapeutic principle should however not be abused.
It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment. It is not intended to enable doctors prevent patients from making informed choices contrary to what the doctors may consider the best interest of the patient.
Material risks
The law imposes a duty on doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment.
It is the patient’s entitlement to decide whether or not to incur that risk. The position of the law is that an adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo and the patient’s consent must be obtained before treatment interfering with his or her bodily integrity is undertaken.
The doctor is therefore under a duty to take reasonable 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.
Attaching significance
The test of a material risk 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 be likely to attach significance to it.
The Supreme Court also ruled that the assessment of whether a risk is material cannot be reduced to percentages as the significance of a given risk is likely to reflect a variety of factors, besides its magnitude.
Some of these factors include the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in these alternatives.
