From my perspective as a medical person, the key parts of the Supreme Court judgement are the following remarks:
“The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The 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. The 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.
The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.
Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.
Secondly, the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The 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.
Thirdly, it is important that the therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.“
The Supreme Court judgement did not make new law; it clarified the interpretation of the existing legal situation at time of events in 1999.
I think it follows that these principles can certainly be applied to all consent decisions made after 1999.
In effect, the ruling gave legal backing to existing GMC Guidance on Consent, which laid down similar guidance in 2008, and before that in 1998.
The Patient, not the doctor, is the individual that makes the informed choice based on accurate information on suggested treatment, reasonable alternatives, and the no-treatment (natural history) option.
The judgement makes clear that the information-giving involves dialogue between doctor and patient, and cannot be based on percentages or checklists alone. There must be a dialogue to establish the individual patient’s perspective, and what the patient views as a material risk. It should go without saying that the discussion must be as understandable to the patient as possible. Until that discussion has been had, the physician does not know the patient’s priorities and red lines.
I wonder how much delegation of that responsibility for dialogue would be acceptable? I have never felt comfortable with delegating that discussion in anything but the most minor of cases, but I recognise that the practice is common. No doubt we will find out the answer to that in due course.
It seems to me however that the use of an aide-memoire, annotated to show which were the principal risks anticipated and discussed (and the scale of that risk), could be useful. It provides some evidence of appropriate discussion, and may help the surgeon avoid errors of omission. If that were not acceptable as evidence, I wonder what evidence would be acceptable, short of video recording of every decision consultation.
The doctor must respect the patient’s decision. When a patient chooses unwisely, as is their right, no doubt a wise doctor will record in even more detail than usual the information and explanation given.
If the patient is finding the decision difficult, a common tactic is to ask the question: “Doctor, what would you do?” Sometimes the patient wants a ‘sense check’ that what they are considering is not so far from what the doctor would choose for themself.
The doctor should take this as a cue, not to take the decision away from the patient, but to expand on the factors the patient should consider in relation to their priorities and red lines. Another line of explanation that may help the patient is to go over which complications are readily treatable, and which have permanent adverse effects. It is so easy to forget that this information which seems obvious to us, is not at all obvious to a patient.