Introduction
Thanks to the Bolam test, patient care is
now shifting from a doctor-centered one to become patient-centered. The
aftermath of the Bolam v Friern Hospital Management Committee has had a tremendous impact on the patient-doctor
relationship[1].
In the period before the lawsuit, the doctor was at the center of
decision-making on issues regarding the type treatment that is most suitable
for the patient. However, the case stirred new issues of discussion regarding
the patients’ responsibilities for their health, treatment and consequences of
the medication administered. The Bolam tests breed three essential issues in
medical care: the ethical, legal and consent. The three issues continue to take
center stage in influencing opinion in the healthcare field. Contrary to the
early days when the mutual trust was the foundation of a doctor-patient
relationship, today doctors have to seek the consent of patients, after
providing sufficient information, before subjecting them to any procedures,
tests or surgery.
Ethical principles of the basic human rights and patient autonomy form
the two critical factors that influence the concept of consent[2].
The principles make the patients the core
decision makers about everything that should happen to their bodies. In making
those decisions, they are allowed to gather all information regarding the
procedures, tests and surgeries the medical practitioners intend to undertake
so that their decisions are informed[3].
Another important aspect regarding the patients’ autonomy is that they should
not be coerced into making any particular
decision. In this regard, the doctors’ role is to facilitate the patients in
making the decision[4].
The issue of informed consent is current and continues to influence
patient-centered care. However, the number of cases filed in courts about the issues of informed consent shows that many
doctors are not aware of the practical impact the judgments will have. With
sufficient proof, patients can sue for damages resulting from the doctors’ negligence of not informing them on
the possible negative outcome of carrying
out the operation[5].
Richards, Coulter and Wicks support the
idea of having patients manage themselves. They claim that a patient-centered
care helps to alleviate some the medical challenges experienced today because
it is the patients who understand their needs better[6].
Furthermore, they support the argument that patient-centered care promotes the
appropriate utilization of services and improve the quality of health care[7].
Many countries, mainly Australia, USA and UK, have adopted the patient-centered
healthcare. Even so, the doctors still lag behind especially regarding the
understanding of the concept of informed consent making them vulnerable to
legal suits. Many doctors still assume their traditional role which in accordance with the laws of UK is outdated.
Informed Consent
Consent allows the patient and the doctor
to communicate with one another. The consent acts as a means by which the
patient authorizes, gives permission or makes a choice about the how the
doctors should act[8].
Consent can either be implied or
expressed. Most doctors do not know the distinction between the two. Implied
consent occurs when the patients explain their problems to the doctors. The
implied consent allows the physician to perform routine investigation or other
physical examinations without revealing any information to them. However, some
procedures such as intimate examination and invasive tests require the doctor
to seek express consent in order to
proceed[9].
For the patients to give the doctor the express authority to proceed, they must
be issued with sufficient information to facilitate them in making informed
decisions[10].
Providing sufficient information enables
the doctors to challenge the consent
because the information revealed was adequate for the patient to make a
knowledgeable decision[11].
On special circumstances such as one concerning therapeutic privilege’, the
Australian courts have allowed it as a justification for withholding
information[12].
However, the courts are very categorical
that therapeutic privilege should not be used
as a justification for information that
will affect the patients’ decision about non-essential procedures[13].
While informing the client, the language and mode of communication used should
be understandable to the patients and should not limit their capacity to make
decisions[14].
According to Skene and Smallwood, doctors should avoid the use of subjective
words[15].
Words like slight risk and rare danger
cannot be quantified accurately in terms of
the actual risk associated and as such, impairs the patients’ judgment.
In the current increasingly litigious world, the case of informed consent
is causing unnecessary fear among the medical practitioners. In the UK, courts
are not contented with the claims of good medical practice, but patients’
autonomy and welfare. The aftermath of the Balom
v Friern Hospital Management Committee[16]
Revolutionized the medical field. In this case, the judge held the doctor’s
decision not to administer the patients with a relaxant drug to prevent convulsion that occurs when one is under
Electro-Convulsive Therapy (ECT). The patient's hip fractured as a result[17].
Administering the relaxant drugs increases the probability of a fracture while
but when given it reduces the possibility of death.
In coming up with a ruling, the House of
Lords created the Bolam test whose results led to the upholding of the doctor’s
decision. The rationale for the judgment was that professionals cannot be held guilty of negligence if their actions
are deemed proper by other skilled people in the same profession[18].
Another argument given for actions that would amount to negligence is when
professionals decide to act in a particular way because the opinion from the
other parties takes the opposite view[19].
The proponents of the Bolam test will argue that only professionals in the
medical field will be able to decide on matters or proper practice[20].
True to their claim, judges do not have the knowledge and skill related to the
medical field, but they can play the role of arbiters
in such cases[21].
However, regarding the matter of arbitration, the judges thinking in the
contemporary world is towards patients’ autonomy, which is a good thing[22].
The concept of the Bolam test has been
blown out of proportion because the law was weak in defining the extent to
which informed consent apply. As such, the recent developments in the Chester
v. Afshar[23]
and Montgomery v. Lanarkshire Health Board[24]
are just a result of the proper
description of the extent of informed consent. In the case Sidaway v. Royal
Bethlehem Hospital[25],
Lord Scarman took a different in approach in his judgment. According to the Lord Scarman’s statement,
the patient was entitled to the disclosure of the risks involved in the medical
procedure, but the disclosure should be to the point where an opinion from the medical practitioners deems it prudent. The
ruling conforms to Bolam test by putting much emphasis on the body of
professionals[26].
In this case, a judge ruling is not based on the preference of a particular
body of the profession but the opinion of
the majority of them. The underlying principle is that the doctors cannot be
fair in the cases involving their profession[27].
Consequently, doctors should come to terms with the new development that places
judges at the center of arbitration. In the new thinking of magistrates, the
decision is not based on what the opinion of the majority but that of the
patient which should be paramount in the management of own health[28].
As previously discussed, the movement is
towards patient autonomy in resolving the issues of negligence among medical
practitioners[29].
In the Chester v. Afshar case, the Lordships found it fit to award claims for damages to the plaintiff[30].
The judgment was not received well by many professional in the medical sector.
The ruling was simply ushering in the error of patient autonomy particularly
because patients continue to demand improved services. Secondly, the fact of evolution and growth of the sector amid
increased complexities demand the change
of tact. The recent development in which the Supreme Court judges ruled in favor of the claimant in the Montgomery v
Lanarkshire Heath board confirms the new revolution[31].
The two cases bring out serious issues in which the professional bodies could
not interpret well in terms of
significance. Perhaps it is due the realization that letting doctors be arbiters in cases discourages the upholding of
good practice.
In both cases, the professionals failed to
attach significance to the patient's side which contravenes
the law. In Chester v. Afshar, Afshar, the Consultant neurosurgeon, failed to
inform the Chester of the 1-2% risk that her condition would worsen when the
surgery is performed[32].
Chester claimed that with the warning, she would have delayed to the surgery
until she consults with family members[33].
The ruling stresses on the function of law to protect people against breaches
of duty. The law should be able to fulfill the mandate that compelled its
existence failure to which it becomes irrelevant[34].
The judges found a close relationship between the injury and the risks that
were Afshar’s duty to warn the patient[35].
The second case carried a higher risk of 9-10% resulting in Montgomery son,
Sam, developing serious disability due to
shoulder dystocia that happens to women with diabetes during vaginal delivery[36].
Dr. McLellan, the doctor in charge, failed to inform the patient of the risk
involved[37].
A study carried out by Chadha and Rapanos in Bristol to find out the knowledge
healthcare professionals had about informed consent revealed that most of them
do not know some of the fundamental laws[38].
For instance, when asked whether or not a signed consent form is mandatory
before a non-emergency surgery, only 21.2% of the respondents were able to
answer correctly[39].
The results of the study indicate the imminence of ignorance among the medical
practitioners. As much as patient autonomy continues to be dominant, it is
necessary for doctors to understand the laws regarding negligence and informed
consent to avoid lawsuits.
In
an appeal brought before the House of Lords but which was dismissed, Afshar’s appeal was on grounds of causation. She
claimed that the likelihood of Chester consenting to the operation was high,
and the results might also have been the same[40].
Afshar’s grounds for appeal display the inability of doctors in determining
what amounts to material risk and also what is significant to the patient. In
the 1992's Rogers v Whitaker’s[41]
Australian case, the chances of going blind in one eye was one to 14000
patients[42].
Christopher Rogers, the doctor consulted, did not act reasonably in the patient’s
shoes to see the possible concern. Instead, he assured the patient the complete
recovery of her right eye which did not happen.
Special Cases
In the R. v. Collins and Ashworth Hospital
Authority ex p. Brady[43],
the presiding judge Kay expressed dissatisfaction with the way the law
advocates for patient autonomy while discounting institutional authority and
integrity[44].
Although he held Ashworth Hospital’s decision to force feed the plaintiff who
was suffering from a mental disorder, his statement of dissatisfaction insinuated that he would have ruled the same
way if the plaintiff was in good mental
order[45].
The law allows the doctors to perform medical procedures if the patients are
considered unable to make a sound decision due to factors as mental illness[46].
Additionally, the law provides for an exception in the disclosure of
information for therapeutic reasons when disclosing such information can course
harm to patients or affect the healing process
[47].
Conclusion
In the past century, the disclosure of
information concerning the risks exposed to patients by a medical procedure was
a decision of the doctors involved. However, in the current litigious era, the
law requires the disclosure of information to patients before the performance
of any medical procedure. The issue has created unnecessary anxiety among the
doctors, but this is a matter of adjustment that must cause unrest for some
time[48].
The unrest is likely to end soon as understanding is developed between
stakeholders in the field. Most importantly, medical practitioners should
strive to understand the law and the extent of its application to help them
make a wise decision. Although patient autonomy presents many challenges,
returning to Bolam does not offer a better solution. Rather merging the aspects
of the two through amendment and compromise will result in better results.
Lastly and most importantly, doctors need to pay more attention to legal
issues.
Bibliography
Badenoch
J, 'A Doctors Duty of Disclosure and The Decline of 'The Bolam Test: A Dramatic
Change in The Law On Patient Consent' (2015) 84 Medico-Legal Journal
Brazier
M and Miola J, 'Bye-Bye Bolam: A Medical Litigation Revolution?' (2000) 8
Medical Law Review
Brazier
M, 'DO NO HARM—DO PATIENTS HAVE RESPONSIBILITIES TOO?' (2006) 65 Cam. Law. J.
Capstick
B, 'The Future of Clinical Negligence Litigation?' (2004) 328 BMJ
Chadha
N and Repanos C, 'How Much Do Healthcare Professionals Know About Informed
Consent? A Bristol Experience' (2004) 2 The Surgeon
Clark
T and Nolan D, 'A Critique of Chester V Afshar' (2014) 34 Oxford Journal of
Legal Studies
Feldman
M, 'From The Editors’ Desk: Patient Autonomy and Medical Decisions: Getting It
Just Right' (2010) 25 J GEN INTERN MED
Gottesman
J, 'Patient-Centered Care and Informed Consent' (2010) 304 JAMA
Hodkinson
K, 'The Need to Know—Therapeutic Privilege: A Way Forward' (2012) 21 Health
Care Anal
Hogg
M, 'Duties of Care, Causation, And The Implications of Chester V Afshar' (2005)
9 Edinburgh Law Review
'Incompetent
Patients, Experimental Treatment and The 'Bolam Test' (2003) 11 Medical Law
Review
Jones
J, 'The Healthcare Professional and The Bolam Test' (2000) 188 British Dental
Journal
Kloss
D, 'The Duty of Care: Medical Negligence.' (1984) 289 BMJ
'MEDICAL
NEGLIGENCE AND LIABILITY OF A DOCTOR UNDER TORT LAW: A CRITICALANALYSIS' (2013)
III Indian Streams Research Journal
Montgomery
J and Montgomery E, 'Montgomery On Informed Consent: An Inexpert Decision?'
(2016) 42 J Med Ethics
Owens
D and Corcoran M, 'Great Expectations: An End to The Bolam Test?' (1999) 5 Br J
Healthcare Management
Reach
G, 'Patient Autonomy in Chronic Care: Solving A Paradox' [2013] Patient
Preference and Adherence
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T, Coulter A and Wicks P, 'Time to Deliver Patient Centred Care We Must Harness
the Energy, Insight and Expertise of Patients, Carers, And The Communities That
Support Them to Help Drive Change' [2015] theBMJ
Samanta
A and Samanta J, 'Legal Standard of Care: A Shift from The Traditional Bolam
Test' (2003) 3 Clinical Medicine
Satyanarayana
Rao K, 'Informed Consent: An Ethical Obligation or Legal Compulsion?' (2008) 1
Journal of Cutaneous and Aesthetic Surgery
Sher
J, 'The Triumph of Logic Over Common Sense? A Commentary On Chester V Afshar'
(2002) 70 Medico-Legal Journal
Skene
L and Smallwood R, 'Informed Consent: Lessons from Australia' (2002) 324 BMJ
Sokol
D, 'Update On The UK Law On Consent' [2015] theBMJ
Warren
Jones J, 'Law & Ethics: The Healthcare Professional and The Bolam Test'
(2000) 188 British Dental Journal
Bolam
v Friern Hospital Management Committee (1957) 1 WLR
Chester
v Afshar (2004) 1 UKHL
Montgomery
v Lanarkshire Health Board [2015] UKSC
R
v Collins and Ashworth Hospital Authority ex p Brady
(2000) 1 EWHC
Rogers
v Whitaker [1992] HCA, 1 CLR (HCA)
sidaway
v royal bethlem hospital [1985] HL, 1 ALL ER (HL)
[1] J Warren Jones, 'Law & Ethics: The Healthcare Professional
and The Bolam Test' (2000) 188 British Dental Journal 238.
[2] KH Satyanarayana Rao, 'Informed Consent: An Ethical Obligation
or Legal Compulsion?' (2008) 1 Journal of Cutaneous and Aesthetic Surgery.
[3] Gérard Reach, 'Patient Autonomy in Chronic Care: Solving A
Paradox' [2013] Patient Preference and Adherence 15.
[4]
Ibid at 2
[5] Reach, 'Patient Autonomy in Chronic Care’ (n 3) 15.
[6] Tessa Richards, Angela Coulter and Paul Wicks, 'Time to
Deliver Patient Centred Care We Must Harness the Energy, Insight and Expertise of
Patients, Carers, And The Communities That Support Them to Help Drive Change'
[2015] theBMJ 1.
[7]
Richards, Coulter and Wicks, ‘Time to Deliver Patient
Centred Care’ (n 3) 1.
[8]
Rao, ‘Informed Consent’ (n 1) 4.
[9]
Ibid. at 4.
[10] James E. Gottesman, 'Patient-Centered Care and Informed
Consent' (2010) 304 JAMA 409.
[11]
Ibid. at 410.
[12] L. Skene and R. Smallwood, 'Informed Consent: Lessons from
Australia' (2002) 324 BMJ 39.
[13]
Ibid. at 39.
[14]
Rao, ‘Informed Consent’ (n 2) 6.
[15]
Skene and Smallwood, ‘Informed Consent’ (n 12) 40.
[16] Bolam v Friern Hospital Management Committee (1957) 1
WLR 582.
[17]
Ibid. at 585.
[18] J. Badenoch, 'A Doctors Duty of Disclosure and The Decline of
'The Bolam Test: A Dramatic Change in The Law On Patient Consent' (2015) 84
Medico-Legal Journal.
[19] M Brazier and J Miola, 'Bye-Bye Bolam: A Medical Litigation
Revolution?' (2000) 8 Medical Law Review 87.
[20] 'Incompetent Patients, Experimental Treatment and The 'Bolam
Test' (2003) 11 Medical Law Review.
[21] Brazier
and Miola, ‘Bye-Bye Bolam’ (n 19) 87.
[22] A. Samanta and J. Samanta, 'Legal Standard of Care: A Shift from
The Traditional Bolam Test' (2003) 3 Clinical Medicine 444.
[23] Chester
v Afshar (2004) 1 UKHL 41.
[24] Montgomery v Lanarkshire Health Board [2015] UKSC 11.
[25] sidaway v royal bethlem hospital [1985] HL, 1 ALL ER
(HL) 643.
[26] J. Jones, 'The Healthcare Professional and The Bolam Test'
(2000) 188 British Dental Journal.
[27] David Owens and Mark Corcoran, 'Great Expectations: An End to
The Bolam Test?' (1999) 5 Br J Healthcare Management.
[28] 'MEDICAL NEGLIGENCE AND LIABILITY OF A DOCTOR UNDER TORT LAW:
A CRITICALANALYSIS' (2013) III Indian Streams Research Journal.
[29] Mitchell D. Feldman, 'From The Editors’ Desk: Patient Autonomy
and Medical Decisions: Getting It Just Right' (2010) 25 J GEN INTERN MED.
[30] Chester v Afshar (2004) 1 UKHL 41.
[31]
Montgomery, (n 24) 11.
[32] Martin Hogg, 'Duties of Care, Causation, And The Implications of
Chester V Afshar' (2005) 9 Edinburgh Law Review.
[33] T. Clark and D. Nolan, 'A Critique of Chester V Afshar' (2014)
34 Oxford Journal of Legal Studies.
[34]
Ibid. at 5.
[35] J. Sher, 'The Triumph of Logic Over Common Sense? A Commentary
On Chester V Afshar' (2002) 70 Medico-Legal Journal 189.
[36] Daniel Sokol, 'Update On The UK Law On Consent' [2015] theBMJ
1.
[37] Jonathan Montgomery and Elsa Montgomery, 'Montgomery On
Informed Consent: An Inexpert Decision?' (2016) 42 J Med Ethics 92.
[38] N.K. Chadha and C. Repanos, 'How Much Do Healthcare
Professionals Know About Informed Consent? A Bristol Experience' (2004) 2 The
Surgeon 328.
[39]
Ibid. at 329.
[40]
Hogg, ‘Duty of care’ (n 36).
[41] Rogers v Whitaker [1992] HCA, 1 CLR (HCA) 48.
[42] Sokol, 'Update On The UK Law On Consent' (n 36) 1.
[43] R v Collins and Ashworth Hospital Authority ex p Brady
(2000) 1 EWHC 355.
[44] Margaret Brazier, 'DO NO HARM—DO PATIENTS HAVE
RESPONSIBILITIES TOO?' (2006) 65 Cam. Law. J 379.
[45]
Ibid. at 380.
[46] B. Capstick, 'The Future of Clinical Negligence Litigation?'
(2004) 328 BMJ 459.
[47] Kate Hodkinson, 'The Need to Know—Therapeutic Privilege: A Way
Forward' (2012) 21 Health Care Anal.
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