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Montgomery v Lanarkshire Health Board: The Impact on Informed Consent in Clinical Negligence Claims

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.

Introduction


This article will discuss how Montgomery[1] has moved away from the ‘reasonable doctor’ test in Bolam[2] to the ‘reasonable patient’ test and introduced the general duty owed by doctors to disclose medical risks. The legal and ethical impacts of Montgomery will be discussed, while highlighting the clinical concerns raised by doctors over the Montgomery test. In doing so, this article aims to show that the Montgomery test has raised the legal standard for the disclosure of medical risks by framing patients as key decision-makers who should be allowed to make active and informed decisions on medical treatment.




Montgomery Test


Mrs Montgomery had given birth by vaginal delivery to her child. Prior to Mrs Montgomery’s delivery, the doctor had failed to warn her that her child had a 9-10% risk of serious injury from shoulder dystocia or the possibility of an elective caesarean section. After Mrs Montgomery had delivered her child, the child had severe disabilities due to shoulder dystocia. Mrs Montgomery sued for medical negligence, claiming that although the risk of shoulder dystocia was small, she should still have been advised of the 9-10% risk of shoulder dystocia associated with vaginal delivery.


The Supreme Court held that instead of asking what a reasonable doctor would disclose, a doctor must inform the patient of the “material risks”, which (a) a reasonable person in the patient’s position consider as significant, or (b) the doctor is or should reasonably be aware that the particular patient would consider as significant.[3] This duty was only subject to two exceptions. The first exception is the therapeutic exception, whereby the doctor is not required to make disclosures to her patient if, in the reasonable exercise of medical judgment, she considers that it would be detrimental to the health of her patient to do so.[4] The second exception is that the disclosure of material risks would not be required if this was a medical emergency and there was no time to disclose the risks to the patient.[5]


The Impact of Montgomery


Montgomery is evolutionary for several reasons. Legally, Montgomery signifies a move away from the ‘reasonable doctor’ test to the ‘reasonable patient’ test.[6] In doing so, Montgomery has clarified consent law and aligned it with the GMC guidance. Ethically, it highlights that patients are the key decision-makers and has reinforced the importance of patient autonomy.[7] By striking a careful balance between patient autonomy and medical paternalism, Montgomery has clarified that medical decision making involves the negotiation of information and patients should be provided with the necessary information needed to make active and informed decisions.


However, there have also been several clinical concerns over the Montgomery test.


First, doctors have feared that full disclosure of medical risks to the patient would cause distress and anxiety to the patient, causing them to make poor decisions.[8] Furthermore, it is alleged that it would be a huge drain on the doctors’ time and energy if they are required to make full disclosure of the medical risks.[9] However, this argument is flawed because even if the full disclosure of risks would lead to the patient making a decision that is not in their best interests, patient autonomy and the value of information should still triumph medical paternalism. It would be inappropriate for the doctor to withhold information on medical risks simply because the doctor disagrees with the decision that the patient would take.


Second, there is the possibility that doctors will practice “defensive medicine”. This is where doctors would recommend medical treatment that is not necessarily the best option for the patient, but would protect the doctor against the patient if the patient were to file a claim against the doctor.[10] This problem has been highlighted by academics and the courts are recommended to be mindful of the risk of defensive practices when applying the Montgomery test.[11]


Conclusion


Ultimately, the Montgomery decision has clarified the law on disclosure of risk and raised the benchmark to state that risks which the reasonable patient would consider to be significant or that the doctor would reasonably be aware that the patient considers to be significant have to be disclosed. Montgomery is crucial because it highlights the deep respect for patient autonomy, while striking a balance with medical paternalism.


Juet Wee Kweh (Medical Law and Ethics)


SOURCES

[1] Montgomery v Lanarkshire Health Board [2015] UKSC 11.


[2] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582


[3] Montgomery (n 1) at [87].


[4] Ibid at [85].


[5] Ibid at [27].


[6] J Swoboda, ‘Bolam: going, going... gone’ (2018) J.P.I. Law 9, 14.


[7] J Laing , ‘Delivering informed consent post-Montgomery: implications for medical practice and professionalism’ (2017) 33(2) P.N. 128.


[8] Chan SW, Tulloch E, Cooper ES, Smith A, Wojcik W & Norman JE 2017, 'Montgomery and informed consent: where are we now?' (BMJ, 12 May 2017). <https://doi.org/10.1136/bmj.j2224> accessed 5 December 2019.


[9] Laing (n 7) 139.


[10] Ibid 128.


[11] Ibid 129.

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