Are you facilitating your patients’ autonomy? Mordel v Royal Berkshire and the objective of informed consent

Mordel v Royal Berkshire,[1] a recent decision of the high court, raises important points for healthcare professionals around the issue of informed consent. The origins of the doctrine of informed consent lie in the protection of bodily integrity. However, it is clear that bodily integrity no longer defines the limits of the doctrine – due to the increasingly-prevalent, and wider, principle of patient autonomy. Mordel makes clear that, in obtaining informed consent, practitioners should:

  • consider whether they are facilitating a patients’ truly autonomous choice; notwithstanding any indication that the patient has accepted – or declined – any proposed intervention.
  • consider whether the proposed intervention has been explained in a comprehensible way. Has this patient understood the proposal and its implications for them?
  • bear-in-mind that providing the information necessary for informed consent is necessary but not sufficient. The patient must understand the information if they are to be able to make an informed choice.

Mordel: The facts of the case

The claimant brought a claim in negligence after her son was born with Down’s syndrome. Her claim was lodged on a basis that, but for the defendant’s negligence, she would have had screening for Down’s syndrome during her pregnancy and thus would have terminated her pregnancy, in light of the outcome of that screening. In discussions with a mid-wife the Claimant had indicated she wished to have the screening test and the necessary scan appointment was arranged.

Mr Justice Jay found that the sonographer concerned did offer the Down’s screening at the scan appointment, and the patient declined it.[2] He also found that the claimant had previously received an ‘informed offer’ of screening from the midwife, whom had booked the ultrasound screening. The claimant had therefore received the information necessary for informed consent to theoretically be achieved.[3]

Informed Consent to decline an intervention

Did the sonographer obtain the claimant’s informed consent to decline the screening? The Judge concluded that she did not. The claim in negligence succeeded.

To have satisfied the duty to obtain informed consent, it was incumbent on the sonographer to take reasonable steps to ascertain that the refusal of screening was an informed refusal.[4] Jay J held that the sonographer should have:

  1. Checked a discussion had occurred between the patient and the midwife explaining the screening procedure.
  2. Checked the patient had received the information leaflet about screening produced by the NHS.
  3. Briefly questioned the patient to ensure she had an understanding of the elements and purpose of the screenings.[5]

‘Informed offers’

The midwife’s ‘informed offer’ meant that the correct information had been relayed – it did not mean that informed consent had been obtained. If anything, declining the very assessment which the appointment had been intended to provide is illogical and should prompt further inquiry.[6] Jay J took care to describe the obligation as a requirement to take ‘reasonable steps’ to secure an informed decision. The duty is context-dependent: practitioners proposing an intervention where there had not previously been an ‘informed offer’ would inevitably have to do more. Jay J noted

“…in the context of a human system it is impossible wholly to avoid misapprehensions persisting and misunderstandings arising despite the implementation of entirely proper practice by a sonographer. The NHS could not operate if the law required guarantees and complete “fail-safes”, the latter term being interpreted literally.”

True understanding

To satisfy the requirements of informed consent the patient should truly and genuinely comprehend what it is they are accepting or rejecting.[7] The weight which they attach to competing risks and benefits is a matter for them. This means that their reasoning behind acceptance or rejection of a treatment is immaterial.[8] As the Supreme Court noted in Montgomery, bombarding a patient with technical information does not discharge the duty.[9] That is a point made with force by Howard Brody M.D. in his classic work, The Healer’s Power. When responding to the demands of informed consent as imposed by lawyers, Brody’s imagined paternalistic, and smug, physician responds

“… the joke is on them, for it turns out that we can play their silly game, disclosing mounds of information, and still make sure that we end up doing what we know is best”.[10]

It remains poorly understood amongst healthcare professionals that securing a patient’s signature on a form does not ensure – or demonstrate – that the patient has understood the proposed intervention.

Patient autonomy

The law has long protected against physical interference with bodily integrity through the law of assault and battery. In the context of medical treatment the doctrine of informed consent evolved as a bulwark of that principle; by ensuring interferences with bodily integrity only occurred when the patient approved them, on a basis of adequate information.[11]

However, that narrow framing does not translate readily to the facts of Mordel. This was not a case of a patient consenting to an interference with their bodily integrity on a flawed understanding. In this case the patient declined a proposed intervention/assessment. In the Court’s assessment the sonographer failed in their duty to check that the patient’s decision to decline screening was an informed one.

Medical practitioners have always been cautious about accepting without scrutiny, and careful documentation, what appear to them as irrational refusals of treatment. Mordel illustrates that whether a patient accepts or declines a proposed assessment/intervention, the crucial question to ask yourself is: ‘Have I facilitated a genuinely autonomous decision for my patient?’

Jake Chadwick and Stewart Duffy

[1] [2019] EWHC 2591 (QB); [2019] 10 WLUK 77.

[2] Ibid, at [55].

[3] Ibid, at [88].

[4] Ibid, at [84].

[5] Ibid, at [89].

[6] Ibid, at [84]. See also [86].

[7] Ibid, at [86], [87].

[8] Ibid, at [85].

[9] Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] A.C. 1430, at [90].

[10] Howard Brody M.D., The Healer’s Power (1993; Yale University Press), pg. 88.

[11] See, for instance: Schloendorff v Society of New York Hospital (N.Y. 1914) 105 N.E. 92; 211 N.Y. 125; Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, especially at [27]; Re T (Adult: Refusal of Treatment) [1993] Fam 95; Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] A.C. 1430, especially at [87].


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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