Consent for treatment comprises a number of components:
• Provision of adequate information to, and its understanding by, the patient
• The ability of the individual to retain and assimilate this information, weigh up the alternatives and consequences, and come to and communicate a decision (in ethical and legal parlance, often referred to as ‘capacity’ and ‘competence’, respectively)
• Allowing adequate time for the process
• Voluntariness, i.e. no coercion by others
Consent may be implied or expressed. Implied consent is usually assumed when a patient cooperates in allowing a minor procedure, such as venepuncture, to take place. For a more major procedure such as epidural anaesthesia, the maintenance of a suitable posture might be taken to imply consent to continue, but it would be unwise to rely on this in the absence of a full discussion.
There is no legal difference between written and verbal consent. The only advantage of the former is that it provides concrete evidence that a discussion took place if a dispute arises.
Failure to obtain consent before performing a procedure could lead to an action against the anaesthetist for battery - the unlawful touching of another person. In practice, this is rarely, if ever, an issue in claims against doctors. Far more likely is the claim that a lack of informed consent resulted in a complication (if the patient had only been told of the risk, she would not have undergone the procedure), which amounts to a claim of negligence. (A 2005 House of Lords judgment means that a doctor may now be found negligent with respect to the provision of adequate information to the patient even if this failure had no effect on the patient’s decision to undergo treatment.)
The amount of information that a doctor must impart to a patient to aid her in making a decision has traditionally been based on the ‘Bolam principle’ from 1957, which holds that an action - in this case the failure to mention a complication - is not negligent if it can be shown that the doctor has acted in accordance with a ‘responsible body of medical persons skilled in that particular art’. However, this principle, which essentially allows the profession to set its own standards, has increasingly been challenged, particularly by the ‘Bolitho principle’ from 1997, by which the views or practice of a body of medical opinion can only be considered as ‘reasonable’ or ‘responsible’ if it holds up against ‘logical analysis’. Thus, for example, an anaesthetist who did not explain the risk of nerve injury after an epidural might claim that many other anaesthetists would also not explain this (a defence based on Bolam) - but the courts might decide that this is unacceptable practice nonetheless (Bolitho).
These principles have been superseded by the landmark Montgomery case of 2015, which ruled that doctors have a duty to disclose risks if ‘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’. The law thus requires that each patient should be given the information that a reasonable patient might want and that she herself would want, not what the treating doctor thinks she needs. Further, she should be informed of the alternatives to the treatment being discussed. So, for instance, a woman undergoing caesarean section should be told the risks and benefits of regional anaesthesia and those of general anaesthesia, even though the former is being proposed as the best and safest option for her.
Problems and special considerations
The principles of consent to treatment in obstetric anaesthesia are essentially no different from those in any other field, the main distinction being that, in the often fraught circumstances that surround labour and delivery, they may be more difficult to apply.
Prior information about epidural analgesia - e.g. in the antenatal clinic - is generally accepted as improving the consenting process, but it should be borne in mind that up to half of primigravidae who end up with an epidural were not intending to have one beforehand.
Questions may arise over the issue of capacity when the mother is in the full throes of labour, especially when she is exhausted and/or has received powerful analgesic drugs. The practitioner treating the patient (in this case, the anaesthetist) is the person who must make the decision of whether or not the mother does have the capacity to understand what is being explained or proposed to her. If yes, then she is able to consent to (or refuse) treatment as in any other situation, even if this goes against a previous statement in the form of a birth plan - i.e. a woman with capacity is able to change her mind. If no, then the anaesthetist is obliged to treat her in her ‘best interests’ - which may not necessarily mean siting an epidural. In such a situation, the anaesthetist must attempt to determine what her best interests are, for example based on her birth plan and, where possible, discussions with her partner and midwife about her prior views and strength of feeling. Trainee anaesthetists would be well advised to consult with senior staff should such a situation occur. It is important in such circumstances to explain the difficulties of the situation to the woman’s partner, to record the discussions in the patient’s notes, and to visit her postpartum to explain events to her.
Consent is ultimately a matter between the anaesthetist and the patient. However, the partner’s views should not be dismissed summarily; they are important participants in the birth process and should be encouraged to listen to the anaesthetist’s explanation and accept the woman’s decision. As outlined above, the partner can also be a key provider of evidence as to what a woman’s ‘best interests’ might be if she lacks capacity to give consent.
The presence of the fetus does not interfere with the patient’s right to make an autonomous decision about her own care, even if the decision taken will compromise the wellbeing of her unborn child. It is, of course, still very important that the risks and benefits to the fetus are also explained to the mother when seeking consent to a particular course of action. An emergency court order to authorise treatment may be requested in such circumstances, but will only be granted if the court concludes that the woman lacks the relevant decision-making capacity and that the treatment is in her best interests.
Patients whose first language is not English are as entitled as any others to an adequate explanation in their own language. The partner may act as translator in an emergency, but this is a very poor substitute for using an official interpreter. In hospitals where a substantial proportion of patients are from ethnic minorities, suitable interpreters should be made available (e.g. via telephone) at all times.
In difficult cases, it is wise to make sure that a witness (usually the midwife) is present, that all present agree on what has been said and decided, and that appropriate notes are made in the medical records, detailing the discussion and the decision.
Management options
Good antenatal education about pain relief and anaesthesia, supported by booklets and/or videos, is an important part of the obstetric anaesthetist’s job, and it is best not delegated to midwives unless the information that they disseminate is scrupulously checked. Every obstetric unit, in conjunction with the anaesthetic team, must provide advice in early pregnancy about pain relief during labour.
Signed consent for epidural analgesia in labour is not currently considered necessary, and in most units only verbal consent is taken. What is important is to give an adequate explanation of the risks and benefits that are applicable to each particular woman making a decision in the prevailing circumstances. This will obviously vary according to the situation, but a note should always be made listing the matters discussed and identifying reasons why an explanation was brief or curtailed. If the procedure is difficult or prolonged, then verbal permission to continue must be sought at regular intervals.
For regional techniques, most obstetric anaesthetists would now consider, as a minimum, explanation of the risk of partial or complete failure of the technique, dural puncture and headache, motor block, a fall in blood pressure, neurological complications, sensation during caesarean section and the possibility of conversion to general anaesthesia. An explanation of the risks of regional anaesthesia for caesarean section should always include the possibility of discomfort, pain and conversion to general anaesthesia. Failure to do this has resulted in many negligence claims against anaesthetists and trusts.
When offering anaesthetic options for elective caesarean section, it is perfectly reasonable to stress the maternal advantages of regional block, but there is no argument at present for insisting on this when there are no contraindications to general anaesthesia. A patient undergoing emergency caesarean section with a functioning epidural in situ is a different proposition entirely, and every effort should be made to encourage an epidural top-up, with refusal being carefully recorded in the notes.
Key points
• It is difficult to provide complex information to a woman in painful labour. Antenatal education makes this task much easier.
• Women with capacity are able to change their mind at any time; those without capacity should be treated in their ‘best interests’.
• The risks and benefits discussed with the patient should always be recorded.
• A pregnant woman’s autonomy is not affected by the fact that she is carrying a fetus.
Further reading
Broaddus BM, Chandrasekhar S. Informed consent in obstetric anesthesia. Anesth Analg 2011; 112: 912-15.
Chan SW, Tulloch E, Cooper ES, et al. Montgomery and informed consent: where are we now? BMJ 2017; 357: j2224.
McCombe K, Bogod DG. Paternalism and consent: has the law finally caught up with the profession?
Anaesthesia 2015, 70: 1016-19.
Wheat K. Progress of the prudent patient: consent after Chester v Afshar. Anaesthesia 2005; 60: 217-19.
Yentis SM, Hartle AJ, Barker IR, etal. AAGBI: consent for anaesthesia 2017. Anaesthesia 2017; 72:93-105.