Consent to Medical Treatment Not Valid if Risks are Hidden

Rules on informed consent to medical treatment have changed.

When a patient gives consent to medical treatment the doctor must be sure their consent is valid. There are three legal requirements.

The patient’s consent must be voluntary and informed and the patient must have the mental capacity to be able to make the particular decision that is required.

What is informed consent?

A patient must be given all of the information about the treatment that the medical professionals are proposing. That includes information about any risks involved. The duty to inform patients about medical risks can sometimes create a problem both for doctors and their patients. Sometimes doctors are faced with giving their patients an enormous amount of complicated medical information. The result can be that the patient becomes confused and finds it difficult to make a decision.

Attitudes to risk are important

Everyone has different attitudes to health risks. Our attitudes to certain risks may be affected by our mental state or personality. Some people, for example, have a phobia about surgical operations. Other people are not very risk-adverse or are very trusting of their doctors.

Doctors and hospitals also have different attitudes about medical risks and this can affect the way in which they give information to patients.

What does the law say?

In 2015 the UK Supreme Court in Scotland gave a judgement in the case of Montgomery v Lanarkshire Health Board that has led doctors in Scotland and England to alter their approach to the way they inform patients about medical risks.

The court decided doctors have a duty to take reasonable care to explain all risks to patients in a way that takes account of their views and personal values. It’s no longer acceptable for doctors to take an “I know what’s best for you” attitude to patient information.

Should a patient be told about every risk?

The Montgomery case considered the way information had been given to the claimant, Mrs Montgomery about the risks to her unborn child of a natural delivery. Some of the risks for a mother in Mrs Montgomery’s situation were generally considered to be very small and there are many benefits for mother and child in having a natural delivery.

The court heard that it was the policy of the hospital to encourage mothers to have natural births. Mrs Montgomery chose a natural delivery after a discussion with her doctor. There were complications that led to her baby being born with cerebral palsy. Mrs Montgomery claimed that if the information about certain risks had been presented to her in a different way she would have chosen a caesarian delivery.

The court concluded that a patient has the right to have her own values and emotions taken into account when a doctor decides what information should be given to a patient. Patients are at least entitled to information that enables them to take part in the decision-making process.

The Mental Capacity Act 2005 and informed consent to medical treatment

The Mental Capacity Act 2005 says everyone should be helped to make their own decisions whenever possible. This means that a patient should be helped to reach his or her own decisions about their medical treatment wherever possible. In cases where the patient can’t be helped to give consent to medical treatment the doctors will have to consult family members.

Since the Montgomery case, doctors may need to take more account of the patient’s own preferences, anxieties and values. In the case of someone with mental incapacity, this may be very difficult if the patient hasn’t previously communicated their views and wishes to their relatives or medical professionals before they lost mental capacity.

Action to take

The result of the Montgomery case is that doctors must consider more carefully the way in which they offer information to patients to make sure that patients’ consent to medical treatment is genuinely informed.

This means that it is probably even more important than before that we discuss these sorts of issues with family and friends and ensure our wishes and values are recorded in a Lasting Power of Attorney document.

If you want to know more about your rights concerning consent to medical treatment  the NHS has a helpful guide on the NHS website here

About Rosamund Evans

Rosamund is a specialist mental capacity and disability lawyer and the owner of Barker Evans Private Client Law in Nottingham UK.