Consent for medical treatment: What is ‘reasonable’?

By Abeezar I Sarela.

Consent is fundamental to good medical practice. The General Medical Council (GMC) advises doctors to comply with the law in obtaining patients’ consent for medical treatment. Currently, the law on consent derives from the judgment of the Supreme Court in the case of Montgomery v Lanarkshire Health Board. This judgment emphasizes that patients require information about more than just the risks of the treatment that is proposed by the doctor. Patients also need information about ‘reasonable’ alternatives to the proposed treatment because a meaningful choice cannot be made without awareness of options.

The duty to inform patients about reasonable alternative treatments is theoretically sound but it can pose serious practical difficulties. What if a doctor considers that only one treatment is appropriate for a certain patient; and that other treatments, whilst available in general for the patient’s disorder, are not suitable in view of that patient’s particular condition? Now, is the doctor required to discuss these other treatments with the patient? There are differing views on this issue. These differences are sufficiently serious that a case was recently heard by the Supreme Court, and the judgment is awaited.

The facts of the case before the Supreme Court exemplify the problem. The patient, Mr Neil McCulloch, was admitted under the care of an acute medical team. He had pericardial effusion. The acute team made a diagnosis of pericarditis and sought advice from a cardiologist, Dr Labinjoh, who disagreed with the diagnosis. In her view, the pericardial effusion was part of some systemic disorder, with co-existent ascites and pneumonia. Accordingly, she did not advise any specific treatment for pericarditis. Mr McCullough was discharged from hospital and, unfortunately, he died two days later because of pericardial tamponade. His widow, Mrs Jennifer McCulloch, has claimed that Dr Labinjoh should have discussed the option of non-steroidal anti-inflammatory drugs (NSAIDs), which are well-established as the first-line of treatment for acute pericarditis. Her claim is supported by two experts in cardiology. But another cardiology expert disagrees. In his view, NSAIDs were not indicated in Mr McCulloch’s particular case.

At trial in the Scottish Court of Session, the judge considered whether Dr Labinjoh’s advice was reasonable by posing two questions. First, was her advice supported by colleagues in cardiology? (In legal terminology, this question is called the ‘Bolam test’). Second, was her advice logically sound? (the ‘Bolitho test’). In law, a doctor’s action is deemed reasonable if the answer is ‘yes’ to both questions. As mentioned earlier, a cardiology expert endorsed Dr Labinjoh’s advice. Also, her advice was deemed logical because, as per evidence presented to the court, the primary purpose of NSAIDs in pericarditis is to relieve chest pain; and Mr McCulloch did not have significant pain. Accordingly, the judge concluded that Dr Labinjoh had acted reasonably in not advising Mr McCulloch of the option of NSAIDs. The trial judge’s decision was upheld at appeal in the Court of Session.

The argument before the Supreme Court is, essentially, that Dr Labinjoh’s advice was not the only reasonable advice. NSAID therapy, too, would have been reasonable. Two cardiologists, who supported Mrs McCulloch’s claim, would have prescribed NSAIDs for Mr McCullough. Although he did not have a typical presentation of acute pericarditis, he did have a pericardial effusion. It was suggested that NSAIDs might reduce the size of the pericardial effusion even in the absence of pain. As such, NSAIDs were a reasonable option, and the pros and cons should have been discussed with Mr McCullough in order for him to make an informed choice.

More than one treatment may be considered as a reasonable option in many situations. But, legal analyses take place after the event. In real time, a treatment option that is considered reasonable by some doctors can seem unreasonable to others. Doctors have no way of canvassing and debating the opinions of colleagues at every step. Surely, it is each doctor’s job to use their own clinical judgment to identify reasonable options, and then involve their patient in shared decision-making about these reasonable options only. In some cases, as for Mr McCulloch, the doctor might find that only one option is reasonable.

The crux is reasonability. The word ‘reasonable’ appears 13 times in the GMC’s guidance on consent; but the GMC does not clarify the meaning of this term. The meaning remains hotly debated in political and legal philosophy. The Supreme Court’s judgment in the McCulloch case might offer some answers. Yet, it does not seem fair to expect doctors to fathom the demands of reasonability from philosophical literature and case law. The GMC should act upon the Supreme Court’s forthcoming judgment by providing some guidance on what it means to be ‘reasonable’.

Author: Abeezar I Sarela

Affiliations: Department of Surgery, The Leeds Teaching Hospitals NHS Trust

Competing interests: None declared

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