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Barrister Comments on Informed Consent in Medical Negligence Cases

Irish Barrister Doireann O’Mahony last week wrote an opinion piece for the Irish Times, in which she commented on informed consent in medical negligence cases.

Doireann O´Mahony qualified as a Junior Counsel in 2012 and specialises in Medical Law. Her book “Medical Negligence and Childbirth” is due to be published later this year, and – due to her expertise in the area – Ms O´Mahony was the perfect legal professional to comment on a recent UK case in which a new benchmark was set on what constituted informed consent in medical negligence cases.

The case in question was Montgomery vs Lanarkshire Health Board – a case that had been appealed to the Supreme Court in the UK, after the mother of a child who suffered avoidable birth injuries at Bellshill Maternity Hospital in 1999 had been denied compensation by both the Outer and Inner Houses of the Court of Session in Edinburgh.

The mother – Nadine Montgomery – is petite in stature and suffers from Type 1 diabetes. Women who suffer from Type 1 diabetes are more likely to have larger babies and – prior to the birth of her son – Nadine had expressed concerns about being able to deliver her child safely. When her son – Sam – was born, his shoulder got trapped in the birth canal and he suffered shoulder dystocia as medical staff tried to free him.

Due to the umbilical cord also being trapped, Sam was deprived of oxygen during his delivery and – in addition to sustaining a permanent brachial plexus injury during his birth – also suffers from cerebral palsy. Nadine Montgomery subsequently sued the Lanarkshire Health Board (now NHS Lanarkshire) on the grounds that she would have chosen a birth by Caesarean Section had the risk of shoulder dystocia in a natural birth been explained to her.

During the Supreme Court hearing, Nadine´s consultant gynaecologist – Dr Dina McLellan – admitted that Nadine had repeatedly expressed concerns about giving birth naturally, but said that she had chosen not to explain the risk of shoulder dystocia because if she explained to diabetic women, they would all want it. Dr McLellan told the court that, in her view, it was “not in the maternal interests for women to have Caesarean Sections”.

The seven Supreme Court judges unanimously disagreed with the consultant gynaecologist and said in their judgement that social and legal developments “point away from the relationship between the doctor and patient based on medical paternalism”. The judges ruled that a doctor has a duty of reasonable care to ensure that patient is aware of any material risks involved in any recommended treatment and that “it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.”

The Supreme Court awarded Nadine £5.25 million compensation for the birth injuries that her son had sustained during his delivery, and said it would be a mistake to view patients in the modern world as “uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors” – effectively moving the goalposts in respect of informed consent from the “doctor-knows-best professional standard test” to a “reasonable patient test”.

Implications for Informed Consent in Medical Negligence Cases in Ireland

Doireann O´Mahony welcomed the judgement of the UK Supreme Court and the implications for informed consent in medical negligence cases in Ireland. Ms O´Mahony commented that a patient-centred approach to the issue of informed consent has been adopted in virtually every major common law jurisdiction – including the United States, Canada and Australia.

A patient-centred approach to informed consent in medical negligence cases has twice been the preferable test to resolve medical negligence claims in Ireland – in Geoghegan vs Harris (2000) and in Fitzpatrick vs White (2007). Interestingly, in both cases the presiding judge was Mr Justice Nicholas Kearns, who took the opinion that medical professional had a duty of care to impart certain information regarding risks, where those risks were likely to be relevant in the eyes of a reasonable patient.

Although the two cases mentioned above were in respect of dental medical negligence and eye surgery medical negligence, Ms O´Mahony compared the two cases to the rights of a pregnant woman prior to and during childbirth. She wrote:

A pregnant woman must be given sufficient understanding to enable her to make a choice in circumstances where she is free to exercise choice. That is what consent is all about and pregnancy is a particularly powerful demonstration of it. Once pregnant, there are only two possibilities, vaginal birth or Caesarean section. There is no third alternative. While most doctors are meticulous in obtaining “consent” for operative intervention, they seem to have little appreciation of the need, equally great, for proper consent to the non-surgical alternative.

Ms O´Mahony concluded her article on informed consent in medical negligence cases by saying that a professional standard test has no place in the 21st century when it comes to childbirth. She welcomed the move away from a paternalistic philosophy in Ireland, and set a question for those who opposed to the reasonable patient test – “what risks of elective Caesarean section could outweigh the known risk, in any particular case of vaginal delivery?”