From Bolam to Montgomery: a tale of consent

There was a time, not so long ago, when doctors were supported in law to withhold details that might influence your decision making, or that they thought might scare you. This was Bolam’s Principle. Basically this principle states that as long as the collective of doctors reckon you ain’t negligent, then you ain’t negligent. Afterall – doctor knows best.

Then along came Nadine Montgomery. She, rather wisely, felt she was quite capable of making her own decisions.

When it comes to consent, we have the right to refuse a recommended treatment – even if it results in death or injury –

Lauren Sutherland QC represented Nadine Montgomery in the landmark case. You can read about it here.

“The Duty of the doctor is to provide the information”

All of the information. Risks, benefits and alternatives. In the context of the person who will be impacted by the outcome. This needs to be done in a timely manner. For maternity care, this means during pregnancy (or even in advance of a pregnancy, should that be relevant or possible). Exploring the possible pathways, why one pathway might be favourable over another and what factors might influence the likelihood of the direction.

“This is the informational aspect of consent”

The doctor’s role is information – NOT THE DECISION. Consent is not the goal – informing is the goal. The Trouble with Consent is the focus on compliance rather than supporting a decision making process. You have the right to refuse – even if it results in death or injury. As an obstetrician or midwife, you must document the decision – not ‘gain consent’. This is an important point to clarify. Consent is required for you to proceed with an action, but you must not coerce or withhold details in order to gain consent. The goal is inform of all the risks, benefits AND ALTERNATIVES. If an alternative is decided upon, you document the decision, recording aspects of the conversation and follow the decision of the decision maker (patient/pregnant woman/birthing woman/person who lives in the body being discussed).

“There should be interaction and discussion”

Time must be allowed for the information to be absorbed and placed into the context of the individual. We all have different values which will influence what we deem important. Our religion, philosophy, personal circumstances, future plans, past experiences and current situation all come into play. THERE IS NO ONE WAY. In maternity care we can explore those pathways, the what ifs and how tos that we may face, in advance. This means as the birth unfolds, we know where we are, and where we can go, allowing for a less stressful and more confident journey for all involved.

“It is not for the patient to try and work out the right questions”

When we don’t know what we don’t know – how can we possible engage in a meaningful conversation? How can we possible know that the doctor has disclosed all the information we need to determine what is right for us.

I wrote The Birth Map to address this very issue. It began as what I thought would be a birth plan template, contains a few basic questions to ask. I began by including all the questions I wish I had know to ask in advance. Then I added the questions my mother-friends told me they’d wished they’d known to ask. The power of hindsight showed us that which we did not know. And so I accidently wrote a book. That is how many questions there were to be able to understand the pathways. After the book, I developed The Game of Birth. This game shows us what we can control (where the decisions can be made) and what we can’t control. It helps us to prepare for the in-the-moment decision making, but considering how we may feel on each pathway.

Join the Revolution

As a birth worker, you can learn the ways of The Birth Cartographer, by undertaking training to gain confidence in facilitating communication and informed decision making.

If you are preparing for birth, you can purchase a copy of The Birth Map or flip through it by joining the free member access, where you can also play the game. You can also book a one hour birth mapping session.

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