Is it Time for Medical Ethics Experts in Lack of Consent Cases? - Daniel Sokol, 12 King's Bench Walk
12/10/15. Following the landmark case of Montgomery v Lanarkshire Health Board  UKSC 11, I have been instructed on several cases of alleged failure to obtain valid consent. At present, consultants in the relevant specialty are asked to produce expert reports on the quality of the consent process. The reports are, generally, of dubious value.
Medical expertise is not ethical expertise
The doctors' expertise in matters of diagnosis, treatment, or causation - such as whether a GP should have referred a patient to a specialist sooner or the likelihood of a patient developing multiple sclerosis - does not necessarily translate to issues of medical ethics. Many experts, now senior consultants, were trained at a time when there was less fuss about consent. Their own practice on consent may fall short of the new legal standard.
In several cases, the medical experts appeared confused by the new test of materiality set out in Montgomery (i.e., a doctor must 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) and still resorted to the obsolete Bolam standard (i.e., conduct supported by a responsible body of medical opinion). They commented on what happens 'in practice' and concluded, wrongly, that since it happens commonly there is no breach of duty.
Some of the experts are unfamiliar or dismissive of the stringent standards of the General Medical Council. For example, the GMC guidance on consent (2008) - which was endorsed by the Supreme Court in Montgomery - states that doctors must tell patients of their right to seek a second opinion. They must also tell patients whether the benefits or risks of a procedure are affected by which organisation or doctor is chosen to provide care. The expert may think this is nonsense, but that is what the professional body requires.
The non-clinical nature of consent cases
Consent, unlike most areas of clinical negligence, contains a significant non-medical dimension. The Supreme Court in Montgomery noted this at paragraph 85:
85. Deciding whether a person is so disinclined [to be told of a risk of injury] may
involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. […] the need for that kind of skill and judgment [to explain the risks of a procedure] does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor.
And also in paragraphs 114 and 115:
114. […] Dr McLellan referred to explaining to a mother who requested a caesarean section "why it may not be in the mother's best interest" and later expressed the view that "it's not in the maternal interests for women to have caesarean sections". Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section. […]
115. In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear […] that the Bolam test […] becomes quite inapposite.
Issues of consent usually involve non-medical judgments on the significance of a particular piece of information to a patient’s decision. For example, should a doctor tell parents of a 1/15,000 risk of death from tonsillectomy? Should a transplant team tell an adult daughter who is about to donate her kidney to her critically ill father that tests have shown he is not her biological father (although the transplant can still take place)? Would withholding that information invalidate the daughter’s consent?
The expert medical ethicist
For the first time, I have wondered whether a report from the right medical ethicist would be more effective.
This ethicist would be medically literate (there are medical notes and articles to be read), familiar with the historical, philosophical, medical, legal and regulatory literature on consent, and able to write and speak clearly and authoritatively. He or she would also need the credentials to persuade the Court - and the other side - of his or her expertise. This would almost certainly include a senior academic post, teaching experience, and relevant publications in leading specialty journals.
An ethics expert may be helpful in respect of breach of duty but may be less useful than a medical expert on the issue of causation (i.e., on whether the patient would still have had the procedure even if properly 'consented'). An ethicist would not be in a position to say, for example, that in decades of practice he or she had never seen a patient decline an operation once appraised of the minute risk of complex regional pain syndrome or that, in his experience, diabetic patients often choose a caesarian section when offered the option.
Yet, even with that limitation, ethicists - unpolluted by the grim realities of practice, the years of habit, and automatic reliance on the Bolam test - may offer parties and the courts a more accurate assessment on the validity or otherwise of a patient’s consent.
Daniel Sokol is a barrister and medical ethicist at 12 King’s Bench Walk, Temple, London