The English Court of Appeal in a June 2018 judgment confirmed the principles relating to informed consent in medical malpractice claims.
A woman had been suffering painful, heavy periods and lower back pain, for which she sought medical advice. After being given various treatment options, she chose to undergo a total abdominal hysterectomy and bilateral salpingo-oophorectomy. She was insistent on undergoing this procedure despite being warned by her doctor that it was ‘a very major surgical procedure’ and that ‘our recommendation would be to try less invasive methods’. It had been noted that the risks associated with the procedure had been explained to the woman.
As a consequence of the operation, the woman suffered nerve damage with serious and permanent pain. The woman then sued the Worcestershire Acute Hospitals NHS Trust, on the basis that she had not been adequately warned of the risk of chronic or nerve-related post-operative pain resulting from the procedure. There was no claim that the operation itself was performed negligently.
The court referred to the UK Supreme Court’s judgment in Montgomery (Appellant) v Lanarkshire Health Board, which has recently become the most authoritative judgment on informed consent in the UK, to highlight the rules on the disclosure of risks to satisfy the criteria of informed consent.
A doctor has a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
This duty involves two tests: firstly, what the risks associated with an operation were or should have been known to the medical professional in question (which falls within the expertise of the medical professional) and secondly, whether the patient should have been told about such risks by reference to whether they were material (which falls within the discretion of the Court).
The test for materiality is whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
The court found that at the time of the operation in 2008, there was insufficient understanding among gynaecologists of the risk of chronic pain associated with the procedure that the woman had undergone. Therefore there was no duty to warn the woman of such a risk, and no need to decide on the question of materiality. The woman’s claim was dismissed. If it had been a known risk at the time, it would surely have been material.
The South African Constitution entrenches the rights to autonomy and bodily protection. Section 6 of the National Health Act states that every doctor must inform a patient of the range of treatment options available, and the benefits, risks, costs and consequences generally associated with each option. Although the scope of a doctor’s duty to inform has not, as in Montgomery, been finally decided by the highest court in South Africa, it is likely that when the question arises, the court will find along similar lines.