LDC Officials Day 2015 Bolam to Montgomery

Transcription

1 LDC Officials Day 2015 Bolam to Montgomery Richard Birkin National Director: BDA Wales (Head of Regional Services) British Dental Association

2 Informed Consent - definition The voluntary and continuing permission of the patient to receive a particular treatment. It must be based on adequate knowledge of the purpose, nature and likely effects and risks of that treatment, including the likelihood of its success and any alternative to it A guide to Consent for Examination or treatment, DoH, 1990, ACC HC(90)22

3 Informed Consent Autonomy Every human being of adult years and sound mind has a right to determine what shall be done with his own body Consented adults have the right to make poor decisions Judge Cardozo Schloendorff v. Society of New York Hospital 105 NE 92 (NY 1914)

4 Valid Consent Information - explain to the patient the aims/purpose Options Rationale What is involved Risks/side effects That are material and relevant Benefits Alternatives Timescales Costs For all alternatives including doing nothing

5 Material and relevant information Material and relevant risks Severity of the risk Frequency of the risk For each alternative But this is individual

6 Valid consent The patient should Understand the information given Retain that information Believe the information Use or weight that information as part of decision making process Communicate that decision

7 Valid consent records Record Patient concerns/history Patient aspirations Patient opinions ( in their own words ) Patient decision Which is different for all patients Patients are individuals (flautist) Paternalism/ Doctor knows best

8 Thanks.. The changing face of informed consent BDJ Volume 219 No. 7 Oct B.G. Main and S.R.L. Adair Consent a new era begins BDJ Volume 219 No.2 Jul L. D Cruz and H. Kaney

9 Hunter vs Hanley (1955) Scotland 1. It must be proved there is a usual and normal practice 2. The clinician did not adopt that practice 3. The course adopted by the clinician was one no clinician of ordinary skill would have taken if acting with ordinary care

10 Bolam v. Friern HMC [1957] Mr. Bolam had electro-convulsive therapy (ECT) for depression He suffered limb injuries and sued Doctor not guilty of negligence He lost (lawyers huh!)

11 Bolam v. Friern [1957] Because the judge ruled the psychiatrist had:- acted in accordance with a practice accepted by a responsible body of medical men skilled in that art This became the benchmark by which professional negligence was assessed. From the direction of the jury by the high court Judge in Bolam v. Friern Hospital Management Committee.

12 Bolam v. Friern [1957] What would other doctors of similar standing and skill have done for the patient in that situation.

13 Bolam v. Friern [1957] The paternalistic Bolam test was the measure of whether one had discharged his or her standard of care in the management of the patient. It was a test that applies to all professionals and was used where expert witnesses are called in to say what he or she would have done in a similar situation.

14 Sidaway v. Bethlem BoG [1985] Mrs. Sidaway was left paralysed following spinal surgery and sued. The complication (material risk) was assessed a 1-2% chance. And lost

15 Sidaway v. Bethlehem [1985] The House of Lords stated that the clinician should take a reasonable care to advise the patient of any material risk. The Bolam test was upheld But

16 Sidaway v. Bethlehem [1985] Lord Scarman s dissenting opinion was That patients should ordinarily be warned of material risks This turned the tide against paternalism by the medical profession.

17 Bolitho vs City and Hackney HA [1998] The medical profession does not solely dictate the standard of care of a doctor and that a judge is the final decision maker

18 Rogers v. Whitaker [1992] In Australia the clinician was found in breach of duty for failing to disclose the risk for this operation The (material?) risk was blindness from the eye operation The frequency was 1:14,000 ( %) but The patient was already blind in the other eye.

19 Pearce v. United Bristol H NHS T[1999] The risk stillbirth Which was not disclosed the patient sued And lost. The patient did not prove that an obstetrician s failure to disclose the risk (of stillbirth) was negligent.

20 Pearce v. United Bristol H NHS T[1999] The Court of Appeal did assert that when asked of a risk The reasonable doctor was required to tell the patient what the reasonable patient would want to know. = informed consent (above the then current legal standard)

21 Chester v. Afshar [2004] Even had the patient been informed of the risk It was not incumbent on her to prove that she would not have proceeded with the surgery The claimant (patient) need not demonstrate that the resultant harm was due to failure to disclose. The legal principle of causation

22 Chester v. Afshar [2004] I start with the proposition that the law which imposed a duty to warn on a doctor has, at its heart, the right of a patient to make an informed choice as to whether and if so when and by whom, to be operated on Sir Denis Henry Appeal Court decision (UK) Chester v Afshar, Paragraph 86

23 Chester v. Afshar [2004] In other words Even had the patient been informed of the risk, it was not incumbent on her to prove she would not have proceeded with the surgery.

24 Chester v. Afshar [2004] Sir Denis Henry Appeal Court decision (UK) Chester v Afshar, Paragraph 86 The injury would have been just as likely to occur whenever the surgery was carried out, and whoever performed him

25 Montgomery v Lanarkshire HB [2015] In 1999 Nadine Montgomery was pregnant with her first child. She was a type 1 insulin dependant diabetic. There was a risk of her carrying a large baby where there can be a particular concentration of weight on the babies shoulders. This gives rise to the risk of shoulder dystocia the shoulders get stuck behind the pelvis during normal delivery. The risk is estimated at 9-10%

26 Montgomery v Lanarkshire HB [2015] 11% - post partum haemorrhage 3.8% - fourth degree of perineal tear. 70% dealt with by the McRoberts manoeuvre (7%). This can cause shoulder and brachial plexus injury to the baby 0.2% (0.02%?)

27 Montgomery v Lanarkshire HB [2015] In some cases the shoulder dystocia causes the umbilical cord to be trapped causing hypoxia and cerebral palsy. This risk is less than 1%

28 Montgomery v Lanarkshire HB [2015] Mrs Montgomery raised concerns about standard delivery during ante-natal care. The obstetrician did not warn her of the risks of shoulder dystocia. Had she asked specifically about exact risks she would have advised her about shoulder dystocia. It was accepted that this was high risk But that the risk of a grave problem was very low

29 Montgomery v Lanarkshire HB [2015] If you were to mention shoulder dystocia to every (diabetic) patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a Caesarian section, and it s not in the maternal interests for women to have a caesarean sections Dr McLellan was an impressive witness The court did not like or accept this approach

30 Montgomery v Lanarkshire HB [2015] Twelve minutes to free shoulders Cerebral palsy Loss of the use of an arm (another known complication)

31 Montgomery v Lanarkshire HB [2015] Court of Session in Edinburgh lost Appeals to the Inner House of the Court of Session lost Appealed to the UK Supreme Court in London the final court of appeal in the UK for civil cases Seven judges normally five Awarded 5.25 million

32 Montgomery v Lanarkshire HB [2015] The doctor must.. Take reasonable care to ensure that a patient is aware of material risks that are inherent in a treatment A risk is material when a reasonable person attaches any significance to such a treatment, or if a doctor considers their patient should attach significance to such treatment.

33 Montgomery v Lanarkshire HB [2015] Values should be taken into account during the decision making process, particularly when considering issues such as pregnancy Materiality belongs to the patient and not the professions

34 Concepts The clinician s advice should be Fact sensitive and Sensitive also to the characteristics of the patient Montgomery

35 Concepts A move away from the Doctor knows best culture & Medical paternalism To personal autonomy Their values And beliefs What would this patient want to know?

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38 Dentistry Risk Non vital teeth following crowning Percentages Veneers 9-30% tooth removed Attitude to the above Is there anything else you would like more information on?

39 Consent & Lawyers Lawyers would have you believe informed consent is all about the law What is it really all about?... Communication!

40 Communication And which are the most important organs used in communication? The ears and eyes! 90% of communication is listening and observing We have two ears and one mouth

41 Communication Professor Albert Mehrabian 1939 (misquoted) Verbal, Vocal, Visual 7% words 38% tone 55% facial expression Feelings and attitudes We believe the face

42 Communication Use clear language 10%; abbreviations; technicalities Don t scare unnecessarily (risks or words) Interpretation if necessary Careful of promising too much Careful about literature - is it balanced or does it sell a type of treatment (BDA/BDHF)

43 Never treat a stranger If you know your patients well Develop a relationship with them Empathise with them You understand them and their drivers better You will know their wants and needs Complaints will be less likely Even if problems occur Montgomery And the GDC s Standards!

44 Richard Birkin National Director: BDA Wales Le Grand Depart Get your PSA checked!