Mordel v Royal Berkshire NHS Trust [2019] EWHC 2591 (QB) is a decision of the English High Court which gives guidance on the question of what constitutes “informed consent” in the context of medical treatment.
Specifically, the judgement emphases the requirement that medical practitioners and hospitals must ensure that patients understand what it is that they are agreeing to, or declining, in circumstances where informed consent to treatment is required, as well as the potential consequences and/or risks involved in their decision.
The Plaintiff in this case was a first-time mother whose first language was Polish. She attended for her first booking appointment with a community midwife in her GP’s surgery. At this appointment she agreed to undergo all six of the standard screening tests offered by the NHS, including those for Down’s Syndrome during the first trimester. However, the midwife recorded in the notes that Ms Mordel was “unsure” about more invasive tests that carried a potential risk of miscarriage.
The following month, Ms Mordel attended for her screenings at the Royal Berkshire Hospital. The sonographer could not recall the consultation but said it was her usual practice to ask asked whether a mother wanted to have the screening for Down’s Syndrome. Ms Mordel’s medical records from this appointment state that screening for Down’s Syndrome was “declined”, which was recorded in the digital notes by means of a drop-down box. Ms Mordel attended a further appointment with the community midwife several weeks later and at that stage, she could still have undergone the test. The midwife noted the reference in the sonographer’s notes that Ms Mordel had “declined” Down’s Syndrome screening and the subject was not discussed. Ms Mordel subsequently gave birth to a son who was diagnosed with Down’s Syndrome.
Ms Mordel sued the NHS Trust on the basis that she had always wanted the initial screening tests as she advised the community midwife at the initial booking appointment. She confirmed that she had seen the report from her appointment with the sonographer and was aware that it recorded that screening for Down’s Syndrome had been declined. However, she had understood this to mean that the screening for Down’s Syndrome had been performed and that “declined” meant that the screening was negative for evidence of Down’s Syndrome in the foetus. Ms Mordel said that she did not understand the sonographer’s questions and subsequent report correctly and that therefore there was an absence of informed consent in her recorded decision to not undergo screening for Down’s Syndrome.
Mr Justice Jay in the English High Court found in Ms Mordel’s favour. He found that while her English was good, it was not perfect and there were occasions when she failed to understand what was being put to her during the trial. He held that the sonographer should have satisfied herself that Ms Mordel understood what test she was declining and that Ms Mordel had processed the sonographer’s questions properly, particularly in circumstances where the records from Ms Mordel’s initial appointment with the community midwife showed that Ms Mordel had consented to this particular screening. Mr Justice Jay also held that the community midwife had breached her duty of care towards Ms Mordel at the second appointment because she noted the sonographer’s record that Ms Mordel had “declined” the screening after having confirmed her consent to the screening at her initial booking appointment, and did not explore this apparent change-of-mind with Ms Mordel to ensure that this was Ms Mordel’s wishes.
This case highlights the need for medical practitioners to ensure that patients understand the information given to them and the questions put to them regarding their treatment choices in order to establish informed consent, particularly in cases where there is any doubt that the patient has fully understood what the medical practitioner has advised them. Mr Justice Jay confirmed that medical practitioners do not need to cross-examine a patient’s reasons for acceptance or rejection of a treatment decision but checking that the patient understands what it entailed in their decision is a requirement for informed consent.
Mordel is a decision of the English High Court and is not binding in Ireland, however decisions of the English courts are often considered persuasive precedent in this jurisdiction and the ruling will be seriously considered by the Irish courts in future cases regarding informed consent.
About the authors: Mark Jones, Solicitor on the Medical Negligence Team
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