Shift from the ‘reasonable doctor’ to the ‘reasonable patient’

A ruling by a UK court last year forces doctors to tell their patients the full range of treatment options and allowing them to choose. The Royal College of Surgeons has warned of “a dramatic increase in the number of litigation pay-outs” made if doctors and hospitals do not make changes to the processes they use to gain consent from patients before surgery.

Traditionally it was up to British doctors to decide what risks to communicate to patients. But last year the UK Supreme Court held in a case called Montgomery vs Lanarkshire Health Board, that doctors must ensure patients are aware of any and all risks that an individual patient, not a doctor, might consider significant.

In other words, doctors can no longer be the sole arbiter of determining what risks are material to the patient.

In the past, litigation in malpractice suits was governed by the Bolam principle, which saw the judgement of medical experts as the main criterion for assessing reasonable care in negligence cases and for deciding what risks should be communicated to the patient for a chosen treatment.

Now the pendulum has swung from the “reasonable doctor” to the “reasonable patient”. This could mean a huge increase in the workload of doctors. A spokesman for the College said:

“It’s not hard to see how in many hospitals gaining a patient’s consent has become a paper tick-box exercise, hurriedly done in the minutes before a patient is wheeled into theatre for their procedure. Operating lists and consultation clinics are packed leaving little time for these important consent discussions. Patients must be given enough time to make an informed decision about their treatment and hospitals are going to have to give serious thought to how they plan in time for these discussions.”

Philippa Taylor, a bioethicist with the Christian Medical Fellowship, in London, believes that the Montgomery ruling may have the unexpected consequence of curbing abortion in the UK.

There is no absolute legal requirement for the doctor to have seen a patient requesting an abortion, or to have a one-to-one conversation about personal values and beliefs. However the new ruling has now made it clear that in the consent process doctors should explore options with that specific patient in mind. Those who ignore or withhold information due to bias (or paternalism) are breaking the law.

It is also possible that doctors who withhold information on the risks of abortion, even if small, such as the now well recognised link between abortions and later preterm deliveries, and the link to adverse mental health consequences, and even on the possible link to breast cancer, evidenced in some research, may be at risk of now breaking the law. It seems that the case for independent abortion counselling and accurate information giving has just got stronger.

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Michael Cook

Michael Cook edits BioEdge, a bioethics newsletter, and MercatorNet, an on-line magazine whose focus is human dignity. He writes from Sydney, Australia.

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