This process should normally involve a discussion between the doctor and the patient and include dialogue about the risks and benefits associated with each option (including having no treatment at all) so that the patient can decide, after considering the pros and cons of each option, what they want to do.
If a doctor or healthcare professional fails to discuss treatment options or warn a patient of risks associated with those options; and the patient agrees to undergo that procedure (which they otherwise would not have done if they had known about the specific risks) and suffers harm as a consequences of those risks, then this may give rise to a potential claim in clinical negligence based on a lack of informed consent.
Historically, whether or not a doctor had discharged his professional duty in this regard would be determined on the basis as to whether or not the doctor’s conduct would be supported by a responsible body of medical opinion (i.e. other doctors practising in that area). This was the so-called “Bolam test”. The situation has now changed.
Following a Supreme Court judgment in the case of Montgomery –v- Lanarkshire Health Board in March 2015, the law now requires a doctor or healthcare professional “to take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or other treatments”. . To judge whether informed consent has been obtained the Court will ask itself whether or not a reasonable person in that patient’s particular position would be likely to attach significance to the risk associated with a procedure/treatment and/or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to that risk.
It is not necessary for the patient to have asked the doctor specific questions but if the patient expresses concerns, then the questions which would normally arise out of those concerns, must be addressed by the doctor as part of the process of obtaining that patient’s informed consent to treatment.
In order to obtain proper informed consent the doctors should focus on a patient’s individual situation and the risks to them and then tailor the discussion to that particular patients specific circumstances and tell that patient whether or not an investigation or treatment might result in a serious adverse outcome, even if the likelihood of that is very small.
It goes without saying that patients will be best able to understand information doctors give them about the risks and possible side effects of treatments if things are explained to them in non-technical language. Simply reciting a list of medical terms and explaining things in a jargon-laden way will not be enough for the doctor to show that they obtained informed consent from a patient if that patient clearly had no understanding of the meaning or significance of what was being said during the discussion.
As with all things, there will sometimes be exceptions to the rule, for example in situations where the disclosure of such risks, would, in the reasonable exercise of medical judgement be seriously detrimental to a patient’s health, or in an emergency situation. As we have said, this is the exception and not the rule.