Dr. David LEVY
United Kingdom

David Levy graduated in medicine from the University of Edinburgh in 1986 and trained in anaesthesia in Aberdeen, Sheffield and Nottingham.

Appointed consultant anaesthetist at Nottingham University Hospitals NHS Trust in 1995, David enjoys a broad clinical anaesthetic practice with principal subspeciality interests in obstetric anaesthesia, neuroanaesthesia, anaesthesia for orthopaedic/trauma surgery, and anaesthesia for electroconvulsive therapy.

David is an enthusiastic teacher of postgraduate trainees, medical students and midwives. He has a busy medico-legal practice, advising solicitors, coroners and medical defence organisations. David graduated with distinction from Nottingham Trent University (LLM, Health Law) in 2016.

In 2020 David joined the complement of Medical Examiners, scrutinising deaths at Nottingham University Hospitals.

Consent for Anaesthesia: The Common Law Basis

This lecture will examine the evolution of English law as applied to consent.

The Mental Capacity Act (2005) incorporated a common law test - as delineated in Re C [1994] WLR 290 - of the ability to understand, retain and weigh information - and communicate a decision. The MCA sets out preconditions to allow us to treat patients in their best interests.

Determination of capacity in labour is fraught. In ML v Guy’s and St Thomas’ NHS Foundation Trust [2018] EWHC 2010 (QB) the judge found that when the mother said “why don’t you chop me now what are you waiting for?” this was the result exclusively of the pain which she was feeling at that stage and was not because of her ongoing concern about the wellbeing of her baby.

The leading case in clinical negligence remains that of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, in which the claimant sustained acetabular fractures in the course of electroconvulsive therapy (ECT). The expert evidence was equivocal. A doctor is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of doctors.

In Sidaway v Bethlem Royal Hospital [1985] 2 WLR 480, the claimant sustained paralysis following cervical spine surgery. Bolam was upheld by the majority in respect of non-disclosure of the risks. Lord Scarman held a minority view – that the test was whether the doctor in advising his patient gave consideration to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.
An argument for right of autonomy and dignity was raised by a minority of judges in 2004, in another spinal surgical case, Chester v Afshar [2005] 1 AC 134.
Thirty years after Sidaway, Montgomery v Lanarkshire Health Board [2015] UKSC 11 held that “[t]he patient [must be made] aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, 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”.

Most recently, in 2023, in McCulloch v Forth Valley Health Board [2023] UKSC 26 the Supreme Court has examined which legal test should be applied to the assessment of whether an alternative treatment is reasonable and requires to be discussed with the patient. A “professional practice test”, invoking Bolam, applies to where a doctor is considering options for treatment.

Increasingly, if a clinical negligence solicitor is failing to prove that the clinical care fell below a reasonable standard, they will resort to claiming that the consent process was inadequate.