consentA Patient centered approach to the issue of Consent has already been established in Ireland with Mr. Justice Nicholas Kearns Judgement in the case of GEOGHAN –V- HARRIS (2000) where he stated that the “reasonable patient test” is to be applied on the issue of Consent to a medical procedure. This test requires full disclosure of all material risks to a patient who, thus fully informed, makes a choice.   The same Judge revisited the issue in 2007 in the case of FITZPATRICK –V- WHITE where he stated the fact that there was a duty to impart certain information regarding risks to a patient where those risks were likely to be relevant in the eyes of a reasonable patient in making a decision.

In the context of the foregoing tests it has been specifically held that a pregnant woman must be given a sufficient understanding to enable her to make a choice in circumstances where she is free to exercise choice.

In a very interesting case, recently before the High Court in the UK, one of the presiding Judges was somewhat critical of the perception which appears to be held by some, including some Medical Personnel, that vaginal delivery is in some way morally preferable to Caesarean Section so that there is an entitlement to deprive a pregnant woman of the information needed to make a free choice in the matter.

A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth vaginally and of giving birth by Caesarean Section, alongside the medical evaluation of the risks to herself and to her baby.

The specific case which was heard in the UK Supreme Court was Montgomery –v- Lanarkshire Health Board.  The Court held that a woman had a right to information about “any material risk” in order to make a decision about how to give birth.  In the particular case, Ms. Montgomery suffered diabetes and was in her first pregnancy.   There was a risk of shoulder dystocia (difficulties delivering the babies shoulders) occurring during vaginal delivery.    This potential complication poses serious risks to both mother (such as post-delivery haemorrhaging or perineal tear) and baby.   In this particular instance, Ms. Montgomery was not told of the risk of shoulder dystocia.

What is of interest in this case is that, although Ms. Montgomery had repeatedly expressed concerns about giving birth vaginally, her doctor said that she routinely chose not to explain the risks of shoulder dystocia to diabetic women because if she did do so, every woman would ask for a Caesarean Section!

Sadly, in this particular case, during the vaginal delivery the umbilical cord was compromised and the baby deprived of oxygen.   Birth with severe disabilities followed.

Ms. Montgomery alleged, and the Court agreed, that she should have been advised of the risk of shoulder dystocia in vaginal delivery and of the alternative option of elective Caesarean Section.   Her position was that, had she been so informed, she would have elected for Caesarean Section.

The Court reiterated the position that there was a duty on doctors to discuss with patients the material risks in a medically preferred treatment and any alternative treatment options.    The test for materiality is whether a reasonable person in the position of a patient would think the risk significant.

What comes across in this particular case is that, while Doctors are meticulous in obtaining “Consent” for surgical interventions, they seem to lack an appreciation of the need for proper informed consent to non-surgical alternatives.



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