risk of shoulder dystocia. However, the claimant had not been warned of the risk as her gynaecologist thought the risk was small and mothers who were given such warning tended to request caesarean sections which the gynaecologist considered were not in the mothers’ best interests. Consequently, the claimant’s baby suffered deprivation of oxygen and a physical injury. It was accepted in evidence that if the claimant had been warned of the risk, she would have asked for a caesarean section. The Supreme Court held that there is a legal duty on doctors to make sure that a patient is aware of material risks of injury inherent in any proposed treatment. The court also confirmed that the previous analysis of the law by the House of Lords in the case of Sidaway is no longer to be applied. This is a marked change to the previous Bolam test, which asks whether a doctor’s conduct would be supported by a responsible body of medical opinion. This test will no longer apply to the issue of consent, although it will continue to be used more widely in cases involving other alleged acts of negligence. The decision in Spencer v Hillingdon Hospital NHS Trust was the first chance the lower court had to apply the decision of the Montgomery . 28 The patient had bilateral pulmonary emboli after a hernia operation. He did not seek treatment instantly as the doctor did not warn him of the risk of deep vein thrombosis or pulmonary embolism or of symptoms that might indicate these. The judge considered the Montgomery ruling and held that failure to inform the patient was a breach of the duty of care. Additionally, in Webster v Burton Hospitals NHS Foundation Trust , 29 it highlights that following Montgomery , patient has the right to choose the type of treatment they wish to undergo and patient’s autonomy is paramount. The medical practitioner only plays an advisory role which provide medical information, whereas the patient’s decision may be based on a range of different variables. 27 Montgomery v Lanarkshire Health Board  UKSC 11 28 Spencer v Hillingdon Hospital NHS Trust  PIQR P53 29 Webster v Burton Hospitals NHS Foundation Trust  EWCA Civ 62 9
Exceptions However, every general rule has its exception. A doctor is required to reveal all reasonable information, but he is not required to reveal a risk that would result only from the procedure’s being performed incorrectly. 30 Besides that, when both the patient is unconscious or incapable of consenting and the benefit of treating the patient exceeds any potential harm of the treatment, the doctor is not required to acquire informed consent before treating. 31 Additionally, a doctor can invoke the Doctrine of Therapeutic Privilege if he reasonably believed that the patient has become so emotional that he would not be able to make a rational decision. 32 If the doctor is of the opinion that revelation of the risk is likely to cause harm to the patient, he has the right to withhold such information. However, he must share this information with any of the close relatives of the patient; otherwise he cannot claim this right.
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- Spring '18
- Physician, NHS foundation trust