There are 10 times as many claims for medical malpractice filed against American physicians as are against their counterparts in England. At the centre of these differences is the interpretation of the term “informed consent” or more correctly, the failure to give relevant medical information to a patient to make an informed medical care decision.
Informed consent is one based on disclosure of risks, as well as benefits, of a proposed medical intervention. Two issues usually arise here; what information is really considered relevant and who judges that the information given is actually relevant?
To the Americans, the approach is that of the prudent patient. Here, the key element in the standard of disclosure should be patient-centered. In England, by contrast, it is a physician-determined standard of disclosure. In other words, doctors only need to tell their patients what other doctors think is enough for patients to know. Many jurisdictions recognise the possibility of action for negligence if the patient is not told the general nature and purpose of proposed medical interventions in advance.
The issue of informed consent has been at the heart of many legal battles, and none more famous than the Sidaway case.
Ms Sidaway had a persistent neck and shoulder pain, stemming from a work-related accident. She went to see a surgeon, who performed a spinal disc operation on her. The operation relieved the discomfort for several years. The pain, however, returned later on. The patient went to see the same surgeon and investigations revealed another disc problem causing pressure on the nerve root and therefore causing the pain. The surgeon decided to operate on the patient. The day before the operation, the surgeon followed his usual practice and explained to the patient in simple terms the nature of the operation. However, the surgeon did not refer to the danger of spinal cord damage. The doctor did not also explain that the operation was of choice, rather than necessity. The patient’s spinal cord was damaged during surgery, and she became partially paralysed as a result. The patient took the surgeon to court and claimed the surgeon failed to exercise due care with respect to the information he gave her prior to the operation.
Expert testimony given in court established that the risk of spinal cord injury in this kind of operation was in the range of one to two per cent. The court also established that a responsible body of medical opinion would sanction telling the patient nothing more than what the surgeon had told her. All the judges ruled in favour of the surgeon. In essence, the judges decreed that a physician’s duty to warn is measured by what other doctors tell their patients. One judge put it that a reasonable man cannot be counted upon to act prudently when it comes to making decisions about his own health. Doctors presumably possess more sophisticated skill than does the ordinary person.
However, according to one of the judges, if a patient specifically questions his doctor about the risks of the proposed treatment, the doctor must tell the patient whatever it is that the patient wants to know. The doctor must answer fully and truthfully all of the patient’s concerns.
In the absence of specific requests from the patient, the extent of disclosure is almost purely a matter of clinical judgment. The realities of the doctor/patient relationship preclude the understanding of technical issues on part of the patient. The doctor’s duty to provide information remains subject to the therapeutic privilege. Based on the doctors duty to act in the patient’s best interests and not to cause harm, therapeutic privilege applies to protect the doctor who believes, on reasonable grounds, that providing the particular information will seriously harm the patient. To put it the other way, the doctor will say that concealing the information was in the patient’s best interest.
According to one judge, patients prefer to put themselves unreservedly in the hands of their doctors. The relationship of confidence and trust between the doctor and the patient would be damaged if doctors were required to disclose all material risks. Patients would eventually suffer because instead of concentrating on their primary duty of treating their patients, doctors would inevitably be concerned with safe-guarding themselves.
Ultimately, the information which a doctor is required by law to impart in order to obtain a valid consent is that amount of information which enables the patient:
• To understand the nature and purpose of the proposed course or action. This information should provide the doctor with a defense to an action in battery or trespass to the person.
• To make a properly informed choice, which information if not provided, might lead to a successful legal suit of negligence.
The judges warned the doctors that the law will not permit the medical profession to play God.