Most people will appreciate that in the heat and stress of a medical emergency, errors on the part of the clinicians can happen and that it may be difficult for the medical team to consider whether a patient has consented to the treatment being offered.
The Supreme Court recently held that Ms Montgomery should succeed in her claim against the Lanarkshire NHS following the birth of her baby boy in 1999. The hospital should have considered and discussed with her the possibility of a caesarean section but as it was they did not and the birth of her baby resulted in him suffering severe disabilities.
The case re-affirms existing law in that the patient's consent must be obtained before treatment which involves their bodily integrity and the clinician must consider what represents a 'material risk' to the patient and must discuss these risks and options with the patient.
The Supreme Court had hoped that this decision would encourage patients to take responsibility for their own decisions which may lead to a decrease in litigation in this area. Many legal commentators agree that this is unlikely to be the outcome and disputes may arise as to what constitutes 'informed consent' and indeed whether the patient understood the risks in the first place.
If you are affected by any of these issues, contact us.
Internet link: Montgomery v Lanarkshire Health Board (Scotland) [2015]