The court in Chester v Afshar made a radical departure from previous case law and ruled that failure to inform the patient of a material risk was a harm for which damages could be recovered even where that failure would not have affected the decision of the patient. More recent rulings naturally follow on from this decision, including the case of Montgomery v Lanarkshire Health Board and Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust. Here we will consider Chester v Afshar and Montgomery v Lanarkshire Health Board.
Informed consent has evolved from the paternalistic standard of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, where it was held that the standard for determining what informed consent was determined by a responsible body of medical opinion. The medical profession set the standards for the amount of information necessary.
The failure to provide information considered relevant by an individual patient does provide grounds for negligence where the patient would have sought a different surgeon (for example) in order to minimise the chances of a complication which was particularly important for that patient to avoid. This was the basis for causation in the case of Chappel v Hart. The claimant argued that she would have sought the most experienced surgeon possible in order to minimise the small risk of losing her voice after surgery on a pharyngeal pouch.
Therapeutic privilege is still protected to an extent, although like the case of Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust the exemption provided might be regarded as rather difficult for doctors to rely on. Where exactly does distress and anxiety naturally related to the weighing of such important decisions become "psychological harm"? Will doctors acting in good faith be protected?
Chester v Afshar marks a sea change in consent in British law. It changes the standard of consent to subjective from objective. The onus is now on doctors to find out what the patient considers important. Since it is essentially impossible for someone to know whether a fact is important prior to knowing that fact, this means that disclosure has to be complete in reality. Further, the courts created a new tort in order for these rights to be enforceable. The infringement of autonomy, regardless of any effect of health whatsoever, is a tort.
The subsequent development in Montgomery v Lanarkshire Health Board is not surprising. The policy-based decision to not warn all diabetics about the risk of shoulder dystocia was seen as an infringement of individual autonomy. This has wide-reaching consequences, of course. The initiatives to reduce the rate of Caesarean sections will probably founder. Obstetric care is unlikely to improve overall.
The neo-Liberal emphasis on individual choice has reached the law courts, and this does not sit easily with a national health service.
