Providing adequate information disclosure
Arguably the most controversial aspect of obtaining consent relates to the level of information that should be provided to the patient on order to obtain effective consent.
Consent to treatment requires two types of information:
- information regarding the broad nature of the procedure
- information with regard to the risks involved with a procedure
Information regarding the broad nature of the procedure
Chatterton v Greson established that in order to obtain effective consent the patient need only be told in broad terms of the proposed procedure. See Ethics Network guidance.
Building on an earlier case of Hills v Potter the judge in Chatterton v Greson concluded that in order for an action for negligence against the doctor to succeed it must be clearly demonstrated that the patient would have refused treatment if a fuller explanation of the procedure had been given by the doctor. Judge Hirst explained thus:
"I should say that I am not satisfied on the balance of probabilities that even if the plaintiff had received a still further explanation (e.g. by quotation of the figures and percentage of risk) she would have declined to undergo the operation"
Information with regard to the risks involved with a procedure
Sidaway v Board of Governors of Bethlem Royal Hospital demonstrated that it is the duty of the doctor to warn the patient of the inherent material risks of a proposed treatment, (in this case a surgical procedure) in order to obtain valid consent. In this case it was suggested that the doctor did not explain the risks of the surgery to the patient in sufficient detail to obtain effective consent. The patient pursued an action for negligence in respect of injuries which resulted from the operation. The action failed when the House of Lords applied the Bolam test. In Sidaway the right of the doctor to decide what information to give to the patient and what information to withhold in consent issues (known as "therapeutic privilege") was established.
In Bolam, however, Lord Griffiths describing the level of information required to be provided for a patient to give effective consent thus:
"If a doctor's failure to warn of a particular risk could be justified as being in accordance with the opinion of a responsible body of medical men, then that was sufficient and successful defence for a doctor".
The responsible body of men referred to in this quote, would today be recognised as being the evidence based information a professional body would accept as the level of information that should be provided to a patient in order to allow an decision to be made by the patient and appropriate consent to be obtained. However, case law on informed consent continues to evolve and more recent cases indicate that courts do not always accept the opinion of 'a responsible body of men' and are more likely to expect the healthcare professional to provide detailed information when obtaining consent' e.g. Chester v Afshar.
The NMC and other professional organisations therefore advise that nurses provide patients with sufficient information to make a choice about whether or not to accept treatment or care. See Nursing and Midwifery Council website.
