The ‘Bolam Test’ has long been the cornerstone of UK medical negligence law and provides that a clinician is not negligent if their actions are supported by a responsible body of opinion. The Bolitho ruling qualified that the court must be satisfied that the peer opinion was logical. The Sideway ruling established that in obtaining consent, a doctor’s failure to disclose certain risks does not necessarily constitute negligence if supported by a body of medical opinion. This legal framework mandated healthcare professionals to provide standardised care with the patient acting as merely the recipient, a style of service delivery supported by NHS reforms.
The 1997 white paper New NHS: Modern, Dependable resulted in the introduction of clinical governance, a paradigm through which NHS organisations would be accountable for standardising and improving care. Strict adherence to evidenced-based practice ensured all treatments or interventions were backed by scientific research. While this worked well in other medical specialties, it proved problematic in maternity where standardisation resulted in increased public dissatisfaction, complaints and litigation which frequently focused on matters of consent. For consent to be valid, the person giving it must do so voluntarily, feel fully informed and have the capacity to make the decision – theoretically sound, but tricky in practice.
Obtaining consent
Pregnancy and birth are physiological, not pathological processes. The traditional approach assumed midwifery-assisted care, with consent only required for operative delivery. But even in physiological labour, the boundary between what does or does not require explicit consent has become blurred. In the UK, the Supreme Court ruling in Montgomery v Lanarkshire Health Board, in which both mother and infant were harmed as a result of shoulder dystocia, redefined informed consent by mandating doctors to ensure the mother is aware of all ‘material risks’ of any treatment and any reasonable alternatives. While this was hailed as a welcome move away from the paternalistic ‘doctor knows best’ approach, the requirement to provide ‘fully informed consent’ posed huge challenges, the most important of which was the inherent assumption that healthcare professionals were the only, or at least the main, source of information. Most pregnant women today rely almost exclusively on online or social media sources which are highly influential.
Obtaining consent in acute or dynamic situations is virtually impossible. For example, while declining surgery for a fractured hip guarantees morbidity, declining a caesarean section due to possible intrapartum fetal distress does not preclude vaginal birth of a healthy baby due to the physiological resilience of the fetus. Women hastily presented with options and given only a few seconds to decide often report ‘birth trauma’, now present in 4-5% of UK mothers.
Consent forms often contain stickers, stamps or drop-down screens listing complications which may appear dull or even threatening. Electronic versions have artificial intelligence aids linked to websites or videos explaining the proposed procedure. Some mothers disengage, others experience intense anxiety due to information overload; many accuse staff of scaremongering. Trust ebbs away as ‘one size fits all’ medicine becomes the norm. Staff practise defensively and women increasingly request ‘out of guideline’ care.
Giving consent
‘Voluntary’ means consent must not be influenced by medical staff, friends, family or indeed the many sources of non-healthcare-approved information. But the social significance of pregnancy means that mothers often co-opt birthing partners or family members in decision-making. In certain communities in multi-cultural Britain, men are regarded as dominant decision-makers and obtaining maternal consent can pose exceptional challenges due to language barriers and religious or cultural beliefs. In maternity, we also care for victims of trafficking or rape. Poverty, homelessness and lack of social support reduce personal agency, and women are disproportionately affected. The ability to give voluntary consent is a privilege many do not have.
‘Capacity’ is often discussed in the context of mental health, but there are other contributors to limited understanding and impaired decision-making, including poor educational attainment and powerful external influences. Average UK readership scores are 7-9 years, and we would not expect a child of that age to give informed consent. Uniquely coercive birthing narratives devoid of logic or supporting data result in damaging, ideologically driven behaviours even in mothers from professional backgrounds. At present, there is no requirement to assess a patient’s understanding, their ability to weigh up alternatives or challenge alternative sources of information. And studies of consent procedures have reported limited patient satisfaction, recall or ability to relay back information.
How can this be improved?
The UK Supreme Court’s recent judgment in McCulloch v Forth Valley Health Board is helpful in that it clarifies that now not every alternative treatment needs to be discussed. The pendulum may well be settling, but the key to getting this right in the long term will require moving away from standardised towards individualised care, and capturing conversations between the giver and receiver of information fairly.
Open and honest discussions must address expectations and answer queries and concerns, but also challenge preconceptions. Some patients are natural optimists, others are prone to catastrophising; some are risk-averse, others have a great deal or risk tolerance; some wish to avoid intervention, others think conservative measures are a waste of time. Bridging the gap between what is said and what is heard requires acknowledgement and appreciation of these differences.
One way of capturing interactions between healthcare staff and patients objectively is video recording. While abhorrent to many, it is worth remembering that the maternity demographic generally live their lives out on social media. Indeed, studies suggest that patients might look upon this approach favourably. Recording events in an unedited way is not altogether unfamiliar. The police have done this and with the right safeguards, it may be workable in maternity. Apart from its potential use in teaching and training, in the event of a dispute, all parties would have easy access to better quality evidence than the current system allows.
Dr Lorin Lakasing is an NHS consultant in obstetrics and fetal medicine
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