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Patient Not Told Of Treatment Risk Has Right To Informed Consent

Consent form
6th May 2015

A diabetic mother told she was likely to give birth to a larger than usual baby was not informed of the accompanying, potential risks because, in the estimation of the consultant doctor, the likelihood of a serious problem was very small.               

However, during the delivery, the baby’s shoulder became stuck behind the mother’s pubic bone - a condition known as ‘shoulder dystocia’. The umbilical cord was also obstructed, causing a reduced oxygen supply, which resulted in the baby being born with severe disabilities.

The claimant’s case for clinical negligence was based on not being informed by the doctor that, as a diabetic mother, there was a one in ten chance of shoulder dystocia occurring and not being advised of the alternative possibility of delivery by caesarean section.

“Patient's basic human right”

The court was to look at whether a test should be applied for determining if ‘a breach of a duty of care’ had occurred because the doctor had decided not to warn a patient of the inherent risks in a proposed treatment. The test would involve whether a responsible body of medical opinion would accept the doctor’s decision. The court decided that the circumstances would not meet the test, concluding the claimant would not have opted for a caesarean even if advised about the risk of harm.

On Appeal, the court found the verdict unsatisfactory, instead preferring a “patient's basic human right” to make their own decision: “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and consent must be obtained before treatment interfering with bodily integrity is undertaken.”

In principle, a patient has a basis for claiming negligence if they suffer damage as a result not being informed of a risk, which a doctor would have disclosed if they had exercised reasonable care to respect a patient’s right to decide whether to incur the risk. The patient would have avoided the injury if the risk had been disclosed.