Consent: Where are we in 2016?

In 2015, the Supreme Court gave their decision on a case involving the issue of informed consent for an obstetric procedure.1 That judgement (referred to hereafter as ‘Montgomery’) has implications for all doctors practising within the United Kingdom. The claimant was a small, diabetic woman with a large foetus. The risk of shoulder dystocia was estimated to be between 9% and 10%, but the mother was not informed of this because her consultant considered the risk of a ‘grave problem’ for the baby to be “very small” (in the event of shoulder dystocia occurring, there was a 0.2% chance of brachial plexus injury and a 0.1% chance of prolonged hypoxia). The option of planned caesarean section (CS) was not discussed with the claimant, and induction was planned for 39 weeks. During delivery, there was occlusion of the umbilical cord resulting in a hypoxic brain injury. Subsequently, the mother claimed that she should have been warned of the risk of shoulder dystocia and the potentially catastrophic consequences, and of the alternative of planned CS, in which case she would have opted for CS. At both the initial trial and on appeal, the defendant’s experts stated that the “risk of grave problems was very small”, but also that “if such women were warned, most would opt for CS”. Both courts concluded that to not warn the patient was accepted as proper by a responsible body of medical opinion. The Supreme Court accepted that the consultant’s decision accorded with a reasonable body of opinion, but that patients have rights and are not passive recipients of the care of the medical profession. A person is entitled to decide which, if any, of the available forms of treatment to undergo. The Supreme Court accepted that, if appropriately warned, the claimant would not have agreed …