Clinical negligence: patients’ wishes are paramountRichard M Paige
Richard Paige discusses 2 recent decisions which are essential reading for any clinical negligence practitioner: they establish that patients’ wishes are paramount. Doctors must ensure that patients are sufficiently informed and must not censor information.
Clinical negligence: case 1
The judgment in Border v Lewisham & Greenwich NHS Trust  EWCA Civ 8 was handed down by the Court of Appeal on 21 January 2015.
Ms Border had been taken to A&E with a suspected fracture of the right humerus. She warned the senior house officer on duty that she’d recently undergone a left mastectomy and axillary-node clearance, which increased the risk of oedema if a cannula were inserted into her arm. Despite this warning, the doctor inserted the cannula for intravenous access and Ms Border developed an infection and, ultimately, oedema.
At trial, the judge found that Ms Border had not consented to the insertion of the cannula, but the doctor had made a swift and silent decision as to the best site for its insertion and that this decision had not been communicated to Ms Border. The judge went on to find that the insertion of the cannula was carried out in accordance with standard practice and it would have been bold to have delayed the insertion – and therefore dismissed the claim.
On appeal, however, it was held that the judge had erred in progressing to the question of whether the actions of the doctor accorded with standard practice. It was held that a finding of absence of consent led inexorably to a finding of breach of duty. In the leading judgment, Richards LJ said:
“The duty to obtain the patient’s consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it.”
The case was therefore remitted to the trial judge to determine whether Ms Border would have consented to the insertion of the cannula had she been properly warned of the risks and given the opportunity to consent.
Clinical negligence: case 2
In the appeal Montgomery v Lanarkshire Health Board  UKSC 11, from the Scottish Court of Sessions, the Supreme Court handed down its judgment on 11 March 2015.
Mrs Montgomery was diabetic. Whilst pregnant, she was supervised by a consultant obstetrician because of the likelihood that the pregnancy would result in a larger baby.
The obstetrician was aware of a 9-10% risk of shoulder dystocia (the inability of the shoulder to pass through the pelvis after delivery of the head) and a very small risk of grave problems for the baby if shoulder dystocia were to occur. The obstetrician elected not to inform Mrs Montgomery of these risks because, in her estimation, they were so low. During delivery, however, shoulder dystocia did occur: the baby was deprived of oxygen and was born with severe disabilities.
Mrs Montgomery argued that she should have been warned of the risks and given the alternative of having the baby delivered by elective caesarean section which, it was accepted, would have resulted in the baby being delivered unharmed.
The Court of Sessions rejected Mrs Montgomery’s arguments, holding that the relevant question was whether the obstetrician’s failure to advise Mrs Montgomery amounted to a breach of duty by reference to the Bolam test: namely, whether the decision not to advise would be supported by a responsible body of medical opinion (Sidaway v Board of Governors of Bethlem Royal Hospital  AC 871 followed).
The Supreme Court recognised that the approach to patient treatment, and the law, had moved on since Sidaway was decided in 1985, especially with the introduction of the Human Rights Act 1988. They considered the decision in Chester v Ashraf  UKHL 41:
In the leading judgment of the Supreme Court it was held that:
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with 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.
“The test of materiality 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.”
It was also held that a doctor could withhold disclosure of the risks where they reasonably believed that disclosure would be seriously detrimental to the patient’s health, but that:
“it is important that the therapeutic exception should 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 subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.”
The Supreme Court was also critical of the approach of the obstetrician in focusing too much on the risks posed to the baby and insufficiently on the risks posed to Mrs Montgomery.
The very clear message from the Court of Appeal and Supreme Court is that the wishes of the competent patient are paramount – even when they conflict with what the doctor considers (even correctly) to be in the best interests of the patient. Doctors have a clear duty to ensure that patients are sufficiently informed in order to make their decisions, and must not censor information so as to lead the patient into making the decision that the doctor desires.
The law in respect of competent adult patients is now abundantly clear, but questions still remain in the case of children, as illustrated recently by the Ashya King case.
Richard studied Physiological Sciences at Oxford University before completing a master’s degree in Medical Law and Ethics. He has a particular interest in maternal-foetal conflict and practices in all areas of clinical negligence and medical law. See Richard Paige’s profile.
Contact Richard Paige’s clerk, Francine Kirk, on 0113 25 9763.