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Be informed; then disclose

The common law relating to information disclosure, when seeking consent prior to treatment is largely founded on cases about a poor neurological outcome. This is no coincidence, since patients who suffer neurological damage during treatment often, as a consequence, need life-long support. This support needs to be paid for, and it is for this reason that obstetric and neurosurgical cases are brought to court. The most recent is a case about a young man called Sebastian Webster. He suffered perinatal ischaemia, and now has cerebral palsy, entailing profound physical and cognitive impairment.

During his prenatal life, he was noted both to be small for gestational age (SGA) and surrounded by too much amniotic fluid. At the time of his birth, in 2003, there was emerging evidence that the combination of polyhydramnios and signs of fetal intrauterine growth restriction was indicative of, amongst other things, increased perinatal mortality. The High Court found that this evidence was based (in 2003) on an ‘extremely small’ statistical base, which would not at that stage have been reflected in official or academic guidance about the timing of delivery. The court also found that there was a body of reasonable obstetricians who would not, on the basis of the emerging evidence, have been deflected from their normal practice of awaiting a natural delivery. There were theoretical benefits for mother and baby in this conservative approach; of waiting until the forty second week to achieve a more satisfactory labour. Sebastian’s obstetrician favoured the expectant approach, and disclosed neither the evidence of increased perinatal death with SGA and polyhydramnios; nor the option of induction on her due date to the mother.

It should be noted that the obstetrician told the court that he understood the issue raised by the combination of SGA and polyhydramnios. The court found that whatever he understood about the combination of these signs as indicative of possible problems, such an understanding did not extend to him believing that management of the pregnancy should have been affected by it. It also found that faced with the SGA and polyhydramnios, he should have informed himself about the significance of this combination. This information would have included the increased risk of perinatal mortality.

Once in possession of this information, the Court of Appeal found that he should then have told Sebastian’s mother ‘… that there was an emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features’. The court also found that if she had been told this, the mother would have requested induction on her due date. Both parties agreed that if she had been induced on her due date, her son’s injuries would have been avoided.

We have known for many years that clinicians must disclose to patients alternatives to the treatment they propose. But this story reminds us that when clinicians are faced with circumstances that they consider unusual, they are expected to familiarise themselves with the evidence attached to these circumstances. If the evidence indicates a previously unrecognised risk, it should be incorporated in the disclosure to the patient who is faced with a decision. The disclosure of this ‘new’ risk can be tempered by the acknowledgment that the evidence base is sparse, along the lines suggested by the court.  This is by no means support for the contention that a patient can demand specific treatment from the individual doctor. In this example, if the mother, on hearing the disclosure, insisted on immediate delivery then her obstetrician would have been perfectly entitled to decline, since in good faith he attached no importance to the combination of signs. But if he declined, he should have arranged a second opinion on the same day.

Robert Wheeler

Department of clinical law, April 2017