The RCVS and the myth of "informed consent"

Quoting from the RCVS Code of Professional Conduct at paragraph 11.1 - that “Informed consent, which is an essential part of any contract, can only be given by a client who has had the opportunity to consider a range of reasonable treatment options, with associated fee estimates, and had the significance and main risks explained to them.” Unfortunately, the RCVS is wrong in the assertion that informed consent constitutes any part of a contract. 

A contract is comprised of four component parts: an offer, an acceptance, consideration and an intention to create legal relations. The offer and acceptance together constitute the agreement. The consideration has a specific legal definition, but simply put, it is the exchange of promises; the veterinary surgeon promises to perform an operation and the client promises to pay for the work that is done. The intention to create legal relations is a rebuttable presumption in any commercial undertaking. 

As was stated in the case of Chatterton v Gerson, [1981] 1 All ER 257, a lack of informed consent as to the risks inherent in a medical procedure does not vitiate the patient's consent to it, provided he knows its nature in broad terms. Additionally, as per Lord Diplock, Lord Keith and Lord Bridge in the case of Sidaway v Governors of Bethlem Hospital [1985] 1 AC 871, English law does not recognise the doctrine of informed consent. 

This does not mean that there is not a legal (and moral) obligation to inform the client so that they are able to make a balanced judgment. But, failure to do so would not invalidate the contract. Any liability would not lie in surgical trespass but in the tort of negligence. Negligence in the duty to inform would only be an issue if it were shown that the client would not have consented had they had fuller information. 

The law on the duty to warn is not controversial, Lord Bridge of Harwich in the Sidaway case said “when questioned by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must be to answer both as truthfully and as fully as the questioner requires.” In the same case it was made clear that this was primarily a matter of clinical judgment. Lord Templeman said, “…it was for the doctor to decide what information should be given to the patient and the terms in which that information should be couched.”  

It is important to be empathetic with the client; to be open and accommodating in answering any questions that the client may have. That is not the same as burdening the client with information that they either do not need or, in many cases, do not want to know about. The vet/client relationship is one that is based on trust and understanding that, in many cases, would have been built over a number of years. The vet’s role is to guide the client through the process of their pet’s illness and to, benignly, use their Aesclepian authority. 

Empathy requires that one should be responding to the client’s needs and not just passing over a prescribed list of possible adverse consequences.  “The decision on what risks should be disclosed for the particular patient to be able to make a rational choice whether to undergo the particular treatment recommended by a doctor was primarily a matter of clinical judgment” (Lord Templeman).  In Bolam v Friern Hospital Management Committee [1957] 2 All EWR 118 it was held that, “the doctor could not be criticised if, believing the dangers involved in the treatment to be minimal, he did not stress them to the patient.”

 

Of course, I agree with the tenor of the RCVS statement; after all effective communication is an essential ingredient to the "art" of veterinary medicine. Most veterinary surgeons and, indeed, veterinary nurses do a superb job of informing clients of the treatment options and consequences of such treatments that their pets may have to undergo. This is done at a time when the client is usually under some stress and feeling anxious. They will often be relying on the veterinary team for some emotional support. The veterinary surgeon or nurse should not feel compelled or constrained as to what information is passed onto the client on the basis of a legal doctrinal fallacy. 

VJ(c)2013