BRIEFING


“It cannot be left to the doctor to determine what is reasonable to disclose; the move is to what a patient would attach importance to”


Tere are some exceptions: where the patient has made it clear


they do not wish to be informed of risks of injury, where the disclosure would (in the reasonable exercise of medical judgment) be seriously detrimental to the patient’s health, and in an urgent or emergency situation. Whilst this specific judgment is about an obstetric case, the principles apply to consent in all fields of practice.


Consent more than routine Te judgment makes specific comment about what is expected in the dialogue with the patient and the doctor’s role, when at paragraph 90 it states: “Tis role will only be performed effectively if the information


provided is comprehensible. Te doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.” All doctors involved in discussions with patients about consent


will therefore need to be sufficiently well-informed and trained in how to obtain fully informed consent. Tey must be able to identify when a patient may need more information and a greater understanding in order to make a decision about the treatment they agree to have. Te judgment runs to 38 pages and clearly this article provides


treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. Te 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. Te 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.” Te patient does not have to ask specific questions – and it has


been pointed out that it is unreasonable to expect a lay person to know what questions to ask – but if they are expressing some concerns the questions which would naturally flow from those concerns must be explored and answered fully.


SPRING 2015


only the briefest commentary – but at paragraph 107 the message is very clear: “Tis case has provided us with the opportunity, not only to confirm… [that the need for informed consent was firmly part of English law], but also to make it clear that the same principles apply in Scotland.” Tis judgment provides the stimulus for doctors and dentists


to reflect on their practice regarding consent. As usual we would advise that members keep clear, relevant and unambiguous notes of consent discussions and carefully check any proformas or standard information leaflets that are in use. Should a member have any questions or concerns regarding


consent please contact the MDDUS for specific advice as necessary.


n Dr Gail Gilmartin is a medical and risk adviser at MDDUS 15


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