A birth injury claimant has won her medical negligence claim on the issue of informed consent.
In reaching its decision, the court adopted a more patient-based approach to informed consent, breaking with the traditional approach in the well-known case of Bolan.
The claimant, a diabetic woman, had an ultrasound scan showing a large baby in utero. Diabetes heightens the risk of the baby’s shoulders becoming stuck in the birth canal during birth; known as shoulder dystocia. If shoulder dystocia occurs, then it presents a clear danger to the mother’s health, as well as a chance of serious injury to the baby, including cerebral palsy or injury to the brachial plexus.
The Claimant’s obstetrician believed that if pregnant women with diabetes were warned of the possibility of shoulder dystocia, they would usually choose a caesarean section birth. The obstetrician therefore decided not to inform the Claimant of the risk as she didn’t think it was in the Claimant’s (or the public) interest.
During birth, the baby’s shoulders became stuck in the mother’s pelvis. This caused the umbilical cord to become trapped and left the baby with a lack of oxygen causing cerebral palsy.
The Supreme Court decided the Claimant should have been told of the risks of shoulder dystocia and that the obstetrician was negligent in failing to do so.
This approach can be contrasted with the traditional approach usually taken in clinical negligence cases. Under the so called Bolam test a doctor wouldn’t be negligent if they “acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled …”
The Bolam principle in informed consent cases reflects a rather old fashioned concept of medical paternalism. It’s the idea that doctor know best. It sees patients as merely passive recipients of care, incapable of making choices in their own best interest.
But in this latest judgement the Court instead opted to see the patients as an adult, “… capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks
affecting their own lives, and living with the consequences of their choices.”
The Court concluded that the Claimant should have been made aware of the risks of dystocia. If the Claimant had elected to have a caesarean section then her request would not have been unreasonable. Even if established medical opinion supported keeping the Claimant in the dark about the risks she was being exposed to, that was not the view that should prevail.
In its judgment the Court said clinicians must make patients aware of any “material risks”, irrespective of whether a group of doctors believe a risk should or should not be discussed.
It is therefore clear that the Courts are moving away from the Bolam test in these informed consent cases towards a more modern attitude to patient care.
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