Autonomy includes a right to privacy, and hence a doctor’s duty to maintain confidentiality. Hippocrates wrote: “Whatever in connection with my professional practice or not in connection with it I may see or hear in the lives of my patients which ought not be spoken abroad, I will not divulge, reckoning that all such should be kept secret.”
But note the weasel clause, “which ought not be spoken abroad”. In Hippocrates’ time, as is the case now, there are times when a doctor’s duty to the community, and a general duty to prevent forseeable harm, over rides their duty of confidentiality to an individual patient.
"Autonomy includes a right to privacy, and hence a doctor’s duty to maintain confidentiality"
In the consent case described above, Justice Cardozo added in his judgment: “A surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.”
The last sentence states the principle of ‘Emergency Privilege’. Your first duty is to act in the best interests of your patients. If a patient is unconscious and there is no time to seek consent from an ‘alternative decision maker’, you have the right – and duty – to do whatever is necessary to protect the patient from harm. This is one aspect of Beneficence.
It goes much further than that. The Hippocratic Oath outlined beneficence and non-maleficence two millennia before Justice Cardozo. He said: “I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patient and abstain from whatever is harmful or mischievous.”
In earlier times, legal actions brought against doctors who had harmed patients were either criminal cases or civil cases brought in contract rather than negligence. However, after an English non-medical judgment in 1932, the modern law of negligence was defined, and medical negligence claims started to materialise.3
The Montgomery case
The most recent defining medical case in the history of consent went to judgment in 2015. Doctors must now ensure that patients are aware of any “material risks” involved in a proposed treatment, and of reasonable alternatives, following the judgment in the case Montgomery v Lanarkshire Health Board.
In 1999, Nadine Montgomery gave birth by vaginal delivery to Sam. The birth was complicated by shoulder dystocia. Medical staff performed the appropriate manoeuvres to release Sam but, during the 12-minute delay, he was deprived of oxygen and subsequently diagnosed with cerebral palsy.
Mrs Montgomery is diabetic and small in stature and the risk of shoulder dystocia was agreed to be 9-10%. Despite expressing concern to her consultant about whether she would be able to deliver her baby vaginally, the doctor failed to warn Mrs Montgomery of the risk of serious injury from shoulder dystocia or the possibility of an elective caesarean section.
Mrs Montgomery brought a claim against Lanarkshire Health Board, alleging that she should have been advised of the 9-10% risk of shoulder dystocia associated with vaginal delivery notwithstanding the risk of a grave outcome was small (less than 0.1% risk of cerebral palsy).
It was also alleged that delivery by caesarean section ought to have been offered to Mrs Montgomery, and that this would have prevented the child’s injury.
Lanarkshire Health Board argued that only the risk of a grave adverse outcome triggered the duty to warn of such risks and that, because the risk of such an outcome was so low and that an expression of concern was not the same as a direct question requiring a direct answer, no warning was required.
The Supreme Court held that the question should have been about Mrs Montgomery’s likely reaction if told of the risk of shoulder dystocia. The unequivocal position was that she would have chosen to give birth by caesarean section.
The Bolam test was deemed unsuitable for cases regarding the discussion of risks with patients, as the extent to which a doctor may be inclined to discuss risks with patients is not determined by medical learning or experience.
The court ruled that Mrs Montgomery should have been informed of the risk of shoulder dystocia and given the option of a caesarean section.
Mrs Montgomery was awarded £5.25 million in damages.
There are three elements to Justice:
- Distributive justice – fair distribution of limited healthcare resources
- Rights-based justice – respect for people’s rights, such as prohibition of discrimination
- Legal justice – respect for the law.
On an individual patient level, there are some obvious elements to ‘Justice’– for example, not discriminating against patients on the basis of their colour, race, religion, etc; but can we refuse to perform cardiac surgery on a patient because they smoke? Is that discrimination – punishing the patient for not stopping – or a fair medical judgment based on their increased risk of complications at and after surgery?
"On an individual patient level, there are some obvious elements to ‘Justice’– for example, not discriminating against patients on the basis of their colour, race, religion, etc; but can we refuse to perform cardiac surgery on a patient because they smoke?"
More broadly, we do our best to maintain a focus on the patient in front of us, but we are aware of the need to balance that patient’s rights and needs against the need for an equitable allocation of healthcare funds and resources. Who decides what is ‘equitable’? The ethical principle of Justice imposes a moral obligation to decide fairly between competing claims.
- Schloendorff v Society of New York Hospital (1914)
- Gillick v West Norfolk and Wisbech Area Health Authority (1985)
- Donoghue v Stevenson (1932)
LOOKING FOR EVIDENCE FOR YOUR ePORTFOLIO?
Medical Protection is committed to education and training. As well as helping you provide the best care for your patients, we want to support your development. That is why we have developed two online learning modules on the topics covered in this article, so that you can download a certificate of completion as evidence of your learning for your ePortfolio.
What to do next….
- Once you’ve read this article, simply go to our online learning page where you can register for the E-learning platform PRISM
- You’ll need your membership details to register and log on
- Once logged on, you will be able to access the modules highlighted on the home page
- You can complete the modules at a time that suits you
- Download your certificate of completion and any supporting notes
- Other modules on a wide range of subjects can also be accessed through PRISM