Medical paternalism is decidedly unfashionable. Back when I qualified, a “doctor knows best” culture was still evident, albeit one already under challenge from younger doctors and patients. Since then, the concept of a partnership between doctor and patient has grown and developed; the best treatment decisions are those made by the patient and facilitated by the doctor.
But how much information should patients be given about the risks of treatment? Is it the risks that are known to occur more frequently than, say, one in 1,000? Is it every theoretical risk, no matter how rare? And how can you decide what a patient needs to know without some element of paternalism coming into play?
Earlier this month, in a landmark ruling, the supreme court in the UK decided it was for patients to decide whether the risks and variety of treatments have been adequately explained by the doctor. Hitherto, under what is known as the Bolam test, a doctor’s conduct was judged acceptable if it would be supported by “a responsible body of medical opinion”.
However, in a case taken by Nadine Montgomery, who claimed her obstetrician had not told her about the risks of a shoulder- obstructed delivery to her baby boy on the grounds that it might have discouraged her from having a vaginal delivery, the court ruled this was unacceptable practice. Her son developed cerebral palsy as a result of the difficult birth.
The Montgomery ruling means that a doctor's performance will be judged according to what would be expected by "a reasonable person in the patient's position". In the words of the editor of the British Medical Journal (BMJ), the supreme court has landed a "clear and crucial blow to medical paternalism".
The law in Britain now requires a doctor to take reasonable care to ensure that the patient is aware of “any material risks involved in the recommended treatment, and of any reasonable alternative or variant treatments”.
Professional standards
While heralding a significant change to professional standards across the Irish Sea, the law in the Republic is somewhat ahead in this regard. Ever since the Walsh v Family Planning Services case, judges here have signalled their disdain for medical paternalism.
The law very much sees patients as a partner in their own healthcare and in subsequent cases, notably Geoghegan v Harris, judges have opted for the "reasonable patient" test over the "professional standard" approach.
Nonetheless, the Montgomery judgment is a reminder of the sort of questions doctors need to ask themselves when seeking consent. Writing in the BMJ Daniel Sokol, a barrister and ethicist, suggests the following: Does the patient know about the material risks of the treatment I am proposing? What sorts of risks would a reasonable person in the patient's circumstances want to know? What sorts of risks would this particular patient want to know? Does the patient know about reasonable alternatives to this treatment? Have I taken reasonable care to ensure that the patient actually knows all this? Do any exceptions to my duty to disclose apply here?
Material risk is defined as something a reasonable person in the patient’s position would consider a significant risk. There is no doubt that doctors and patients require more time to ensure the consent process is dealt with fully. For example, some hospital patients who are considering undergoing a major procedure or course of treatment are invited to a specialist clinic, where experts in communicating risk spend time going through the options, including the option of doing nothing. This solution is not an option for everyday outpatient clinics or GPs’ surgeries, which makes consent seeking quite a challenge.
In my opinion, the ruling is yet another example of how our presently structured health systems are unfit for purpose. But that’s an issue for another day.
I wish to acknowledge the input of solicitor Kate McMahon to today’s column.
mhouston@irishtimes.com muirishouston.com