Consent to medical treatment in professional sport

Neil Redman, Director, SEMPRIS

We have invited Capsticks, one of the UK’s leading law firms specialising in healthcare, to outline the law of consent specifically focusing on medical treatment in professional sport.

At SEMPRIS, we strongly recommend that doctors seek professional advice when it comes to understanding the unique risks associated with the treatment of professional sportspeople.

Majid Hassan, Partner and Sabrina Hughes, Senior Lawyer, Captsticks Solictors

The decision in the case Montgomery (Appellant) v Lanarkshire Health Board (Respondent) [2015] marked an important turning point in the law of consent. Gone is the peer based review approach i.e. what a responsible body of medical opinion would warn of and instead we now have a more patient focused “informed consent” approach whereby patients are warned of “material risks”. In professional sport despite the desire of sports men and women to have treatment that improves their chances of recovering from injuries and continuing with their careers it is vital that they are properly consented and the outcome of those discussions is recorded.

The case of Montgomery

Nadine Montgomery gave birth on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire under care of Dr McLellan. Sadly, as a result of shoulder dystocia during delivery (the baby’s shoulders being too wide to pass through the mother’s pelvis), the baby was born with serious disabilities. Mrs Montgomery suffered from diabetes, meaning she was more likely to have a large baby which carries about a 10% risk of shoulder dystocia during vaginal delivery. She had raised concerns about vaginal delivery, but Dr McLellan’s policy was not routinely to advise diabetic women about shoulder dystocia. In her view, the risk of a grave problem for the baby was very small, but if advised of the risks of shoulder dystocia women would often opt for a caesarean section, which was not in the maternal interest.

The Supreme Court found that Dr McLellan ought to have advised Mrs Montgomery of the substantial risk of shoulder dystocia, despite evidence from medical experts in support of Dr McLellan’s decision. It was held that a doctor has a duty to take reasonable care to ensure that a patient is aware of any “material risks” i.e. risks involved in proposed treatment which:

a reasonable person in the patient’s position would be likely to attach significance to; or
the doctor is or should be aware that the particular patient would be likely to attach significance to, taking into account factors such as the nature of the risk, the effect of its occurrence on the patient’s life and the importance to the patient of the beneficial aim of the treatment.

The Court also stated that clinicians have a duty to inform patients of any reasonable alternatives to the treatment proposed.

Consent in the context of sports medicine

Professional sport presents particular challenges in the context of consent to treatment provided to sportsmen and women. The landscape will be different as both the doctor and patient may be employees of the club. This could in itself present some level of conflict of interest between what is best for the club and what in the opinion of the doctor is best for the individual player. The player may withhold certain information if they feel that telling the doctor this may impact on their current chances of playing or indeed on the chance of getting a new contract in the future. In the post Montgomery world it is more important than ever that any sportsman or woman is given a full and clear explanation of the risks and benefits of any treatment as outlined above and not what a doctor thinks they should or should not be told. Not telling the family of a teenage footballer about his serious cardiac condition and the risks of continuing to train and play at a high level because the doctor did not want to “shatter his dreams” would not be considered appropriate by any Judge.

If one looks at how cases on consent in sport have been considered in America the case of Krueger v San Francisco 49ers [1987] makes interesting reading. The 49ers were found guilty of fraudulent concealment because physicians failed to inform defensive linesman Charlie Krueger about the full extent of his injuries, potential consequence of anaesthetic steroid injections and the long term implications of playing professional football with a badly damaged knee. Whilst US law is very different to the system in England and Wales the case demonstrates that it is not enough to show that a particular treatment is medically appropriate. It must also be shown that the athlete understands the risks associated with the treatment. Furthermore it is essential that this is all documented without which it is often difficult to prove events many years further down the line.

Comment

Several practical issues arise:

Assessing the significance of a risk is fact-sensitive and cannot be reduced to percentages. In order to advise a patient, the doctor must engage in dialogue, but how far must the dialogue go and what obligations does the patient have to raise concerns which may impact on whether a risk is material?
Doctors must not “bombard patients with technical detail”. However, clinicians may find it easier to tell a patient about all of the potential risks, no matter how apparently unlikely or insignificant, rather than engage in trying to identify those which that patient might consider significant in their particular circumstances.
Does this make the outcome of legal claims even more difficult to predict? The Supreme Court acknowledged that the Montgomery decision will reduce the predictability of litigation, as responsibility for determining the nature and extent of a patient’s rights now rests with the courts, and not a “peer group” of medical professionals.

Key Points

What is clear is that:

Doctors must enter into a dialogue with athletes /patients and be even more careful to give, and document, clear and accurate advice on the risks/benefits of a procedure and the alternatives including the possibility of not having any treatment at all. It is incumbent on the health professional to ensure that the patient fully understands what has been said- if necessary through an interpreter for example in the case of a foreign footballer who cannot speak English.
Consent to treatment policies should be amended to reflect the informed consent approach we are now obliged to follow. Medical teams should have training to ensure that they are all aware of and follow the law.
Existing information sheets for procedures need to be reviewed to ensure they reflect the new position and doctors should not rely solely on these when consenting patients.

How Capsticks can help

Capsticks advise doctors and their representatives on all aspects of medical malpractice claims, and in respect of serious incidents that may also result in an Inquest, disciplinary or criminal proceedings, as well as the GMC.

Capsticks Solicitors LLP www.capsticks.com

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