Clinical Negligence & Catastrophic Injury Solicitors
Communication and consent.
- AuthorKim Daniells
Recent press coverage of a claim for compensation by a mother, whose son was diagnosed with Down's syndrome, has provoked a significant amount of comment. The claim was brought by the child's mother against the Royal Berkshire Hospital NHS trust and arose from events that occurred at the time of the 12 week scan during the pregnancy.
The High Court judgment found in the claimant's favour but much of the subsequent commentary has focused upon the suggestion that the claimant would have ended the pregnancy if antenatal screening had been conducted to show that her son had Down's syndrome. In reality, the judge, Mr Justice Jay, went to significant lengths in his judgment to make it clear that the decision of the court was, in no way, a comment upon the differing wishes and decisions that may be taken by expectant parents.
The Claimant in the case had previously indicated that she did want Down's syndrome screening. She continued after the scan appointment to believe that the screening had been undertaken and that the baby was healthy. In reality, the screening had not been performed and the notes suggested that the screening had been declined.
In making the decision Mr Justice Jay found that the sonographer had failed to obtain the Claimant's informed consent to going ahead with the 12 week scan without screening for Down's syndrome.
The law significantly restricts the compensation that can be paid to claimants who allege "wrongful birth" but in cases where the child is born with a significant disability, compensation may be paid to cover the additional costs associated with that disability.
In reality, the significance of the High Court decision lies not in the area of ethics but in the conduct of the defendant hospital and clinicians at the time of the 12 week scan. The decision reveals that there was a clear failing in communication between the hospital and the claimant, a failing which led to the expectant mother being falsely reassured.
Communication failings are often at the heart of the clinical negligence cases that we see. Clinicians are sometimes short of time to explain matters in detail or to ensure that the patients' choices are properly understood. Patients may be anxious or find the medical options difficult to process. They may feel concerned about asking questions or challenging advice.
This may be a particular issue for expectant parents who are having to consider significant issues and options that relate both to mum and baby.
Our experience has shown that it is particularly important that patients do ask questions and do make their wishes known. It can help some patients to take a brief list of questions to take to consultations or to make notes of the information they are given. Although these steps might occasionally lead to appointments overrunning slightly, they could ultimately lead to patients making better informed decisions and receiving appropriate reassurance. Significantly too, the simple steps could ultimately help the NHS to ensure that the information it provides is detailed and accurate.
Effective and improved communication will benefit both clinicians and patients and, ultimately, ensure that the NHS is safer for all.