Applying consent law in clinical practice

So I'll be talking today about the law in practice, and what I thought would be helpful before we go into real discussion is, what is the core legal framework? So there's two tests.

There's a professional practice test, and then there's the advisory test, and there's a distinction that needs to be made.

So what is a doctor's role when considering possible investigatory or treatment options and the knowledge and identification of risks, and what law applies to that? So that is the professional practice test, and that is what we call Bolam and Bolitho.

So in order to identify what investigations or treatments or the identification of risks, the test is what would a responsible body of anesthetists identify in that position? And also Bolitho, any identification of treatment options or risks must be defensible and logical.

So there's the case of McCulloch, which I'm sure your professor touched upon, in 2023, which involved a gentleman suffering a cardiac arrest, and he passed away, and one of the central issues was the claimant's family argued that he should have been given beta blockers.

The doctor presented other options, and the court had to decide, well, whose judgment is it? Is it the doctor's judgment as to what are the reasonable treatment options, or does it fall to the patient? Do you have to present the patient with every possible treatment and let them decide? The court ultimately held that the identification of risk and possible treatment alternatives is a matter of professional skill and judgment, so it's what a body of responsible anesthetists or doctors in that profession would have identified.

And in that particular case, they said that the doctor's identification of reasonable treatment options were fine, and they didn't have to identify beta blockers, so the claimant lost that case.

So clinicians basically are not required to advise patients of treatment options that they don't consider to be reasonable.

That's down to the clinician.

Yeah, so this is sort of to try and avoid, for want of a colloquialism, the tail wagging the dog.

Yes.

So a doctor should identify the reasonable treatment options with the caveat that doing nothing is always a reasonable treatment option.

Yeah.

And then once they're identified, is that when, as Anna and I were talking about it, Montgomery really starts to come into play, is that-

Exactly.

So, so the first bit is the professional practice test.

So that's you identifying the treatment options, the investigations, and the risks.

That's all down to the doctors.

That's, uh, down to their professional practice.

Then Montgomery comes in, and Montgomery is the advisory test.

So what does the patient then need to be advised? And a patient under Montgomery needs to be advised of the reasonable treatment options that you have identified, the material risks, which means commonly occurring risks that you've identified.

Also, rare risks, alternative treatments, alternative conservative measures or at doing nothing, and then talking to the patient about themselves as well, finding out a bit about them to obtain their informed consent.