Today there is more of a patient-centred focus to medical advice and decision making – gone are the days when what the doctor thought best was acceptable. Now the patient has a right to be involved and understand the options and risks of his or her treatment.
Anne Maguire, Head of Personal Injury explains that recent case law has clarified how a doctor should set out the advice and risks to patients who undergo treatment.
The starting point is that the patient has the right to be given:
- Adequate and accurate advice as to the available forms of treatment so that the patient has choice.
- Details of any material risk involved in any recommended treatment and any reasonable alternative.
- The likely outcome of the treatment, the prognosis and the follow up care and treatment options.
So, what is a material risk?
The test is what a reasonable person in the patient’s position would consider as being significant to him or her. What is important is not the medical profession’s view of whether a risk is important, it is the patient’s.
For example, a mother not advised of the risks associated with abnormalities in a pregnancy was not offered a caesarean at an early stage and her baby suffered cord compression. The Court held that the mother should have been advised of research indicating risks from delayed labour and had she been told, she would have elected for caesarean before the harm occurred. Despite the fact that her obstetrician would have advised her to continue with the pregnancy, the Court accepted that she would have elected for the caesarean as she would have considered the risks of not doing so to be significant.
It is also important that when a Patient gives consent to treatment it is based on accurate advice. A consent form based on wrong advice cannot be relied upon. However, it is still the patients responsibility to prove that if they had been given the correct advice they would have chosen a different form of treatment.