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Andrew Heck and Ross Clark

Introduction

Obstetric anaesthesia poses a convergence of all the ethical and consensual dilemmas only encountered infrequently in other areas of anaesthetic practice. The patient population typically ranges from teenagers upwards, with varying degrees of capacity to consent, a varying level of understanding and information provision, but a universally high degree of expectation. Patients can present in a time-critical manner and the treatment of the mother or the baby may cause risk to one to save the other. The anaesthetist, however, is well placed to provide a unifying voice of reason in this difficult arena. Therefore it is incumbent on us to have a good grasp of all the pertinent issues. This chapter will cover the issues of consent in the obstetric population, the legal background which underpins our current situation, and finally the ethical controversy that surrounds pregnancy testing in the under-16s.

Consent

We perform consent for a number of reasons: ethical, legal and regulatory body requirements.

Ethical considerations

Ethically there are a couple of underlying principles which govern our actions in this area. The Select Committee of Medical Ethics ruled in their report in 1994 that:

Alongside the principle that human life is of special value, the principle is widely held that an individual should have some measure of autonomy to make choices about his or her life … As the law stands medical treatment may be given to competent adult patients only with their informed consent, except in an emergency.

Making your own decisions, whether this involves consenting or withholding consent, of itself promotes welfare. Seeking consent helps to establish trust between the doctor and patient, and actively involves the patient in their own care. The requirement of consent therefore promotes individual autonomy and encourages rational decision-making. These derive from the basic principle of the right to self-determination, complemented by the principle of respect for persons.

Legal considerations

The Department of Health has released the Reference Guide to Consent for Examination or Treatment (2009), which provides a guide to the legal framework that all health professionals need to take account of in obtaining valid consent for any examination, treatment or care that they propose to undertake. It stems from the case law that exists within English law and from Court of Appeal judgements, as well as the European Court of Human Rights.

The classic legal statement comes from an American case (Schloendroff v Society of New York Hospital, 1914) where the presiding Judge stated:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient’s consent commits an assault.

In English law the concept of ‘informed consent’ exists in a very limited form in Chatterton v Gerson (1981) where it was deemed the patient need only be informed in broad terms of the nature of the procedure. As ethically and legally acceptable consent must always be ‘informed’ it has been argued that this phrase represents a tautology, and that ‘valid consent’ is more appropriate. Valid consent comprises three main aspects: the voluntary nature of consent, information provision and time for deliberation, and that the patient must be competent and autonomous. The requirements for valid consent in UK law were set out in the case highlighted below:

Re. C (Adult: refusal of treatment) [1994] 1 WLR 290, Fam Div. An inpatient at Broadmoor Hospital for over 30 years due to schizophrenia had developed advanced gangrene of the foot. He was given an 80% chance of dying despite treatment, but he refused surgical treatment. The judge acknowledged that although his general capacity was impaired, he understood the nature, purpose and effect of the proposed treatment; he retained relevant treatment information and had arrived at a clear choice. This case confirmed the three-stage test that is now required for valid consent and also that mental disorder per se does not preclude someone from making a legally competent medical decision.

The three-stage approach to establish capacity to consent

1. Can the patient comprehend and retain the necessary information?

2. Does the patient believe the information?

3. Has the patient weighed the information, balanced the risks and benefits, arrived at a choice and communicated it?

With the concept of a legal requirement for valid consent in law, to proceed to administer treatment without consent carries the risks of criminal trespass, any of which could affect the medical practitioner depending on the circumstances:

Battery. This is non-consensual touching – i.e. any act on another person without consent. In law there is no need for the plaintiff to establish loss and all direct damages are recoverable.
Assault. This is criminal assault and battery and is an offense against the Persons Act and has a maximum fine of £5000 and/or up to 6 months imprisonment.
Actual bodily harm. This is any hurt or injury calculated to interfere with health or comfort – so anything from a bruise upwards – and carries up to 5 years imprisonment.
Medical negligence. The plaintiff needs to establish that the negligence of touching without consent has led to the injury for which damages are being claimed. There is therefore a need to establish factual causation in negligence and only foreseeable damages can be recovered.
Gross negligence manslaughter. This charge is attributable when a lawful act is carried out in a reckless manner leading to the death of a patient.
Murder. Where the death of the patient is intended.

With the legal precedent for valid consent established and the litigious consequences outlined, it remains to consider what information provision is considered adequate for valid consent. In the United Kingdom the ‘professional practice standard’ has been the norm since the Chatterton v Gerson case mentioned earlier, where the doctor decides what information the patient should be told. Two contrasting, more recent cases are worth mentioning – Sidaway v Board of the Bethlem Royal hospital and the Maudsley hospital [1985] and Chester v Afshar [2004].

Sidaway v Board of Governors of the Bethlem Royal hospital and the Maudsley hospital AC 871; [1985] 1 All ER 1018, HL. A patient was consented for spinal surgery, but the surgeon did not disclose a 1–2% risk of cord damage. The patient suffered a spinal cord injury, but the action for negligence failed. The judgement stated that the physician had the right of therapeutic privilege to withhold information from the patient if they thought that passing on the information could harm the patient.

Chester v Afshar [2004] UKHL 41. Again a patient was consented for spinal surgery and the risk of cord damage was not disclosed. The patient suffered a spinal cord injury, but in this instance the surgeon was found guilty of negligence. The judge concluded that the necessary causal connection between the negligence and the injury had been established on the basis that C, if duly warned, would not have undergone surgery as soon as she had, but would have wished to discuss matters further and explore other options.

Clearly the mandate now is to provide information that the individual in front of you needs to know to make a decision. This requires two-way communication and may be the most time-consuming method; nevertheless it is the standard to which we now aspire.

There are situations where the normal consent process may be suspended:

Where the patient is deemed to have incompetent capacity judged by the three-stage rule. This is covered by the Mental Capacity Act (2005) and Mental Health Act (2007) mentioned below.
Children <16 years old who are not ‘Gillick competent’ (see below).
16–17 years of age is normally considered competent, but they may not necessarily refuse treatment under certain circumstances – where the illness is very grave or a threat to life and parents consent to treatment, or where the courts over-rule a parental decision.
Treatment under public health legislation.
The unconscious patient requiring life-saving surgery under the doctrine of necessity. In these circumstances two requirements must apply: that it is impossible to communicate with the patient and that what is done is what was necessary to save the person’s life.