A consistent issue across many contemporary reports of failing maternity services in the UK (Ockenden, 2021; Kirkup, 2022) is the mismatch between aspirations for informed consent and the reality of how women and birthing people experience the process. Informed consent serves as a central and guiding principle of safe and respectful maternity care, continuing to be referenced explicitly in various iterations of national policy and guidance (NHS England, 2016; 2021; 2023; NHS, 2019). Despite this, repeated themes of poor informed consent practices negate aspirations towards personalised maternity care and have shone a stark spotlight on disrespectful practices in the UK and across the globe. The aim of this article is to briefly discuss the historical context and introduce some key legal cases that underpin the rudiments of what does and does not represent consent (Table 1), focusing on the ‘informed’ element, contextualised within contemporary maternity practice.
Table 1. Informed consent: what it is and is not
| What it is | What it is not |
|---|---|
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It has been argued that, at its simplest, consent is saying yes (Birthrights, 2017). Equally, one could posit, it is the ability to say no (Madeley, 2022). Issues around informed consent continue to present challenges in maternity care, which is frequently attributed to a multitude of complex factors including (but not limited to) clinicians' lack of understanding of key legal and ethical principles that underpin the informed consent process at varying points along the childbirth continuum, service users being unaware of their rights around consent when accessing maternity care, organisational and systemic challenges, such as culture, inflexible guidelines, understaffing, under-resourcing, and the influence of a risk avoidance culture (Lanceley, 2022; Watkins et al, 2022).
Studies have suggested that power and control dynamics, as well as anxiety around the regulatory action and fear of litigation in women and birthing people who withhold consent to care, feature in motivations for coercive and obstetrically violent practices, intended to interfere with autonomy in decision making in a system that has an expectation of compliance (Golden, 2018; Feeley et al, 2021; Madeley et al, 2023). Exploration of experiences of black and minority ethic women and those in the LGBTQ+ community highlights how discriminatory and prejudicial care, poor cultural competency and language barriers also contribute to poor consent practices (Birthrights, 2022; LGBT Foundation, 2022; Peter and Wheeler, 2022).
Valid informed consent centres around the three principles of adequate information (risks, benefits, reasonable alternatives, including doing nothing, taking into consideration the test of materiality), voluntariness (freely given, offered by the woman or birthing person, not influenced by others nor coerced in any way) and competence (being capable of offering consent, including the ability to understand and process the information being offered) (His Majesty's Stationery Office, 2005; NHS, 2022). It is the principle of adequate information that this article seeks to explore.
Historic context
Faden and Beauchamp (1989) suggested that historically, the fundamentals of informed consent as we understand them in a contemporary context, are a relatively recent development in medical ethics, with increasing emphasis brought about through a series of domestic legal precedents. Two key cases in particular set the legal scene, until 2015, for application to issues related to negligence and the provision of information when obtaining consent.
Bolam vs Friern Barnet Management Committee (1957) was the case of a patient who was subjected to electroconvulsive therapy in the absence of administration of a muscle relaxant and consequently suffered injury. The Court found that the doctor in that case had not acted negligently towards their patient, ruling that if a doctor conducted their care in such a way that might be considered common practice and was reasonably supported by a body of similarly skilled peers who would have made a similar decision, then they would not be deemed negligent.
The second case, Sidaway vs Bethlem Royal Hospital Governors (1985), was that of a woman who was claiming for damages having suffered a paraplegia resultant of a decompression procedure to alleviate suffering from neck, shoulder and arm pain. During the consent process, the neurosurgeon failed to advise the claimant that there was a chance of paraplegia, albeit <1%. The Court ruled against the claim for damages, suggesting that providing information that was not explicitly sought by the patient would do little more than unnecessarily deter them from undergoing the procedure. They stated that professional judgement should be used to decide what information to provide, and that providing information on every risk is not necessary, suggesting that the duty was to provide sufficient information, which relied on a professional judgement for the necessity of the intervention, alternatives available and how common serious consequences might be.
Modern legislation
Since the historic rulings on consent, professional standards and national guidance supporting informed consent and decision making have been largely developed to be patient centric in their approach to informed consent (Nursing and Midwifery Council, 2018; General Medical Council, 2020). However, it was not until 2015 that the law changed to be in line with these publications, as a result of the UK Supreme Court landmark ruling in Montgomery v Lanarkshire Health Board (2015).
Nadine Montgomery was a diabetic woman who had raised concerns to her obstetricians of vaginally birthing a large baby, having become aware during scans and subsequent obstetric consultations that her baby was measuring over the 95th centile. Despite her concerns, she was advised not to worry and was not informed of the chance of a shoulder dystocia. The obstetrician's routine practice was not to advise diabetic women of such risks, her opinion being that in discussing the risk of shoulder dystocia with every diabetic woman, they would likely opt for a caesarean birth, which she felt was not in their best interest.
Mrs Montgomery was encouraged to have an induction of labour and vaginal birth, which resulted in her son sustaining serous birth injuries and a subsequent diagnosis of cerebral palsy. This case turned the way in which informed consent should be sought on its head, from the ‘paradigm of the doctor-patient relationship’ of Bolam (Bolam v Friern Hospital Management Committee, 1957), to that of ensuring the woman remains the central decision maker, preserving their rights to autonomy and self-determination. The ruling explicitly stated that ‘patients are widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession’ and that steps are taken to ensure that the woman has been made aware of any ‘material risks involved in any recommended treatment and of any reasonable, alternative or variant treatments’ (Montgomery v Lanarkshire Health Board, 2015).
Material risk
The key to understanding the application of the Montgomery ruling in relation to information provision relies on that of the test of materiality. This test is that in ‘the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’ (Montgomery v Lanarkshire Health Board, 2015). This does not mean, as might appear or as is frequently observed in clinical practice, that every possible finite risk be discussed with, or provided in writing to, women or birthing people to obtain informed consent.
Material risk requires that a discussion be facilitated to discover what might be important to that person, including exploring any alternatives or the option of doing nothing. Such discussions should not be offered as a one-off event, but rather an opportunity to revisit them when necessary, providing suitable moments to ask questions and consider decisions prior to making them. Steps should also be taken to ensure that alongside information, support is given to confirm understanding of any informed offers of intervention or care (Mordel v Royal Berkshire NHS Foundation Trust, 2019). Since the Montgomery case, other rulings and reports have continued to clarify issues around informed consent, information provision, ensuring understanding and support for autonomy (Keh v Homerton University Hospital NHS Foundation Trust, 2019; Mordel v Royal Berkshire NHS Foundation Trust, 2019; Wile and Einion-Waller, 2021).
Conclusions
Ensuring that clinicians have a straightforward understanding of the historical and contemporary underpinnings of informed consent can be useful in contextualising key elements of good clinical practice and reinforcing respectful advocacy in informed consent. At its core, when undertaken appropriately and correctly, informed consent safeguards the autonomy of women and birthing people, protecting other ethical principles such as justice, non-maleficence and beneficence, as well as effectively safeguarding the professional conduct of midwives by fulfilling their duties in relation to their professional code of practice. Furthermore, systemic and organisational barriers, such as inflexible guidelines and processes that are not conducive to the dynamic nature of ongoing consent, can be safely challenged, revised and developed to support personalised and safe care.