Monday, 6 March 2017

Patient Autonomy and National Screening Policy

Is there a conflict between the courts'defence of patient autonomy in Montgomery v Lanarkshire and decision-making about national screening policy?

There has been much recent news coverage about a campaign to introduce a screening programme for Group B Streptococcus in later pregnancy. The campaigners' argument is that over 500 babies were made ill as a result of Group B Strep in the year to April 2015, 27 died, and more suffered severe disabilities. A simple and cheap test for Group B Strep infection in late pregnancy would, it is argued, have resulted in the administration of antibiotics for those mothers found to be infected, thus preventing this level of suffering and death.

The BBC reports that the National Screening Committee opposes introducing screening for Group B Strep in late pregnancy. Its director of programmes, Dr Anne Mackie said, 

"The UK independent expert screening committee's last review of screening for group B strep carriage found testing in late pregnancy unreliable.

"This is because the test cannot distinguish between women whose babies will be affected by early onset group B strep and those who would not. This could lead to a high number of mothers and babies being exposed to unnecessary antibiotic use."

What has this to do with Montgomery?

In Montgomery the Supreme Court emphasised the importance of patient autonomy:

"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is 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."

The Court approved Lord Woolf's approach to consent in the case of Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53, in which a mother had not been warned of the risks to her unborn child of allowing her pregnancy to go "over term" rather than electing to have an earlier, elective Caesarean section. Lord Woolf held:

"In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt."

I make no judgment as to the merits or otherwise of introducing a screening programme for Group B Strep. But I wonder whether there is there a potential conflict between the individual patient's right of autonomy and policy decision-making about screening programmes. For the individual mother, the balance of costs, risks and benefits may seem to point only one way. Of course many will choose to have a simple test for infection in late pregnancy, and to take antibiotics if the test is positive, rather than taking the risk of leaving their baby unprotected from a potentially devastating infection. But at a national, policy level, the balance of risks and benefits includes many wider considerations.

Could judge-made law, which is developed by consideration of the claims by individuals, have consequences for national screening policy? Are midwives and obstetricians obliged to warn expectant mothers of the availability of a test for GBS in late pregnancy, and the risks and benefits of testing, notwithstanding a national policy not to have screening?

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