Written by Daniel Sokol
barrister and medical ethicist at 12 King’s Bench Walk, Temple, London
This article was first published in the Personal Injury Brief Update Law Journal on 12th October 2015 (http://www.pibriefupdate.com)
Following the landmark case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, I have been instructed on several cases of alleged failure to obtain valid consent.
At present, consultants in the relevant specialty are asked to produce expert reports on the quality of the consent process. The reports are, generally, of dubious value.
Medical expertise is not ethical expertise
The doctors’ expertise in matters of diagnosis, treatment, or causation – such as whether a GP should have referred a patient to a specialist sooner or the likelihood of a patient developing multiple sclerosis – does not necessarily translate to issues of medical ethics. Many experts, now senior consultants, were trained at a time when there was less fuss about consent. Their own practice on consent may fall short of the new legal standard.
In several cases, the medical experts appeared confused by the new test of materiality set out in Montgomery (i.e., a doctor must 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) and still resorted to the obsolete Bolam standard (i.e., conduct supported by a responsible body of medical opinion). They commented on what happens ‘in practice’ and concluded, wrongly, that since it happens commonly there is no breach of duty.
Some of the experts are unfamiliar or dismissive of the stringent standards of the General Medical Council. For example, the GMC guidance on consent (2008) – which was endorsed by the Supreme Court in Montgomery – states that doctors must tell patients of their right to seek a second opinion. They must also tell patients whether the benefits or risks of a procedure are affected by which organisation or doctor is chosen to provide care. The expert may think this is nonsense, but that is what the professional body requires.
The non-clinical nature of consent cases
Consent, unlike most areas of clinical negligence, contains an important non-medical dimension. The Supreme Court in Montgomery noted this at paragraph 85:
- Deciding whether a person is so disinclined [to be told of a risk of injury] may involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. […] the need for that kind of skill and judgment [to explain the risks of a procedure] does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor.
And also in paragraphs 114 and 115:
- […] Dr McLellan referred to explaining to a mother who requested a caesarean section “why it may not be in the mother’s best interest” and later expressed the view that “it’s not in the maternal interests for women to have caesarean sections”. Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section. […]
- In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear […] that the Bolam test […] becomes quite inapposite.
The expert medical ethicist
For the first time, I have wondered whether a report from the right medical ethicist would be more effective.
This ethicist would be medically literate (there are medical notes and articles to be read), familiar with the historical, philosophical, medical, legal and regulatory literature on consent, and able to write and speak clearly and authoritatively. He or she would also need the credentials to persuade the Court – and the other side – of his or her expertise. This would almost certainly include a senior academic post, teaching experience, and relevant publications in leading specialty journals.
An ethics expert may be helpful in respect of breach of duty but may be less useful than a medical expert on the issue of causation (i.e., on whether the patient would still have had the procedure even if properly ‘consented’). An ethicist would not be in a position to say, for example, that in decades of practice he or she had never seen a patient decline an operation once appraised of the minute risk of complex regional pain syndrome or that, in his experience, diabetic patients often choose a caesarian section when offered the option.
Yet, even with that limitation, ethicists – unpolluted by the grim realities of practice, the years of habit, and automatic reliance on the Bolam test – may offer parties and the courts a more accurate assessment on the validity or otherwise of a patient’s consent.
It is strange how it has almost become a common belief that it is possible to become an ethical expert. The notion that the opinion of ‘expert’ ethicists should influence the decision-making of a judge and jury would no doubt only further reinforce this belief.
David Archard argued in his paper, ‘Why moral philosophers are not and should not be moral experts’ (Bioethics. March 2011), that what he identified as being the four main reasons why there could not be moral experts should be rejected. He nonetheless claimed that since ‘modern moral philosophy views even a developed moral theory as ultimately anchored in common-sense morality’, we should still reject the notion of moral expertise. That aside, I think within the context of court expert ethicists three of the four reasons are valid.
The four reasons are: ‘the existence of extreme disagreement between moral philosophers about moral matters; that expertise cannot be claimed in that which lacks objectivity; the lack of a means clearly to identify moral experts; and that ordinary people do not follow the advice of moral experts’.
The first, sometimes referred to as the Argument from Disagreement, would cause confusion within a court. It is not unusual for expert witnesses to disagree because all too often it is possible for lawyers to buy the opinion that best supports their case. This problem would be further exacerbated with expert ethicists because of the second reason. Lack of objectivity could lead judges and juries to rely upon ipse dixit “evidence”, i.e. as you put it, evidence from ethicists with ‘senior academic post, teaching experience, and relevant publications in leading specialty journals’ might be viewed as having great veracity than that from less qualified ethicists. This might, contrary to reason four, lead ordinary people (and judges) to follow the advice of moral experts. But, I would argue, this is not in the interest of justice if they are following the advice of moral experts because they have tenure at the most prodigious universities.
You are quite correctly critical of the ‘obsolete Bolam standard (i.e., conduct supported by a responsible body of medical opinion)’ One of the reasons why we have Bolam is that it was about psychiatry which purported to be an objective science (it still does for the most part claim to be objective but perhaps not so stridently in clinical settings). If the then eminent William Sargart had given expert evidence in Bolam the ‘standard’ would have been raised even higher. Bolam is the paradigm case for how the courts can be swayed by the authority of the white coat. The regular use of moral experts in the courts could increase the possibility of repeating the error Bolam with the authority of the cap and gown, and would contribute to the belief that ethics is objective which would increase its authority, and so and so forth.
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