Every doctor is accountable in medical law for the standard of care they provide. They are subject to legal duties which they must adhere to in the course of their service. This extends to the act of obtaining consent from a patient before providing medical treatment, conducting tests and/or any other medical examination. It is important for you to be aware of the duties owed to you, as a patient, whenever you attend your doctor’s surgery.
This article will explore the developments in the law on informed consent and explain the legal duties imposed on doctors when seeking to obtain informed consent. It will also explore the process of making a complaint against a doctor and the stance taken by the regulatory body for doctors, known as the General Medical Council.
What is Consent?
The law on informed consent seeks to balance the power allocation within a doctor-patient relationship. Recognising that decisions relating to a patient’s body form the crux of patient autonomy rights, it is imperative that a doctor obtains consent from their patient before proceeding with any form of treatment, procedure or examination.
Consent must be voluntary and informed. Voluntary consent essentially means the decision should be made solely by the patient, without any influence from any medical staff, friends or family members; informed consent means giving consent after all the information relating to the treatment, whether there are reasonable alternative treatments, and what will happen if treatment does not go ahead. Without voluntariness or information, any consent given would be considered invalid.
For more information on the definition of informed consent, please see: https://www.nhs.uk/conditions/consent-to-treatment/
A doctor’s failure to obtain informed consent from a patient before proceeding with treatment may result in them failing to meet the standard of duty of care. If this happens, you will be entitled to make a complaint against your doctor for negligence (breach of duty of care) and may be eligible to receive compensation for the harm suffered.
How has the law on informed consent changed?
The law on informed consent has changed drastically over the years. This has also altered the duties incumbent on doctors with respect to patient consent. In 1957, following the case of Bolam, doctors were required to only disclose the information which they felt was necessary to share with a patient.
The court effectively found that a doctor would not be negligent if they acted in a way that was acceptable to other reasonable doctors in that given situation. This is known as the ‘reasonable doctor’ test.
After nearly four decades, in 1996, the court reconsidered this test in Bolitho because, in comparison to other professions, the standard held against doctors were much lower and the test essentially allowed doctors’ opinions to substitute court judgments. The court modified the Bolam test, allowing courts to find liability in doctors who nevertheless received backing from some colleagues. This marked a significant departure from the principle set out in Bolam and afforded patients some recognition of their rights.
By and at large, cases since Bolitho reflected this shift in the law of informed consent. In particular, in the 1998 Supreme Court case of Pearce v United Bristol NHS Trust, it was concluded a doctor would be found negligent if he failed to inform a patient of significant risks which could affect the reasonable patient’s judgment. This case was notable because it signalled that patients were the appropriate arbiters of what and how much information the doctor should provide.
In 2015, the test for disclosure in informed consent once again resurfaced in the Supreme Court in Montgomery v Lanarkshire Health Board. The Court unanimously decided to establish a new test of materiality: “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”.
Why is the recent case of Montgomery significant for us?
To many, Montgomery realigned the UK’s law on informed consent with other jurisdictions. The most significant aspect of the decision in Montgomery is the shift in burden from patients to doctors. Despite the Court’s imposition of several exceptions to the test, this newly adopted approach is a successful attempt at abolishing medical paternalism – at least within the realm of the law on informed consent. Long gone are the days where patients have to ask specific questions to get specific answers or surrender to the doctors’ full authority to decide what is best for them.
What is the law on Informed Consent?
In simple terms, this test imposes a duty on the doctor to find out the patient’s values and beliefs, so that they are able to ascertain whether the risks in question are one that the patient might consider a ‘deal-breaker’ in proceeding with that treatment. It reaffirms the rules set out in the General Medical Council’s Guidance on Consent and made these rules into law.
The full copy of this Guidance can be found here: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/decision-making-and-consent
The GMC Guidance on Consent sets out a doctor’s duty in relation to obtaining informed consent. Below are a few key points to highlight from the Guidance.
Your doctor must:
- Communicate with you to find out your values, beliefs, concerns, preferences and priorities when assessing whether a risk is significant and requires disclosure
- Provide accurate, clear and up-to-date information about possible risks involved in that proposed treatment
- Be clear about the limits of their knowledge and answer every question honestly and accurately
- Check that you have understood the information they provided and whether you require more information, before consenting to treatment
- Respect your decision to accept/refuse treatment.
Additionally, it is also worth noting that a signature on the consent form will not amount to a substitution for the dialogue required between doctor and patient in informed consent. A patient is able to withdraw consent to treatment at any point during the procedure, regardless of whether they have signed the consent form. The form can only act as a record of the decision made at the time.
What happens if your doctor breached his/her duty of care?
The General Medical Council is a regulatory body that governs medical practitioners in the UK. If you feel that any of the requirements highlighted above or stated in the GMC Guidance on Consent were not met or carried out by your doctor, it may be possible for you to raise a complaint to the GMC or bring an action on negligence against your healthcare practitioner.
For more information on how to raise a complaint to the GMC, please see: https://www.gmc-uk.org/about/get-involved/complaints-and-feedback-about-our-service/how-to-raise-complaint
Depending on the severity of your doctor’s actions, the sanctions available to the GMC includes giving a formal warning, or if deemed very serious, your doctor could be struck off the medical practitioner’s register and lose their license to practice.
However, if you have suffered harm or loss, you could consider bringing legal action against the hospital for your doctor’s negligence. You may be awarded compensation in damages if a court finds your claim successful. Note that you must start this claim within three years from the date of suffering the injury or three years from the date of finding out you are suffering from that injury so that your claim is not time-barred.
This article is intended for guidance only and ‘must not’ be relied upon for specific advice.