In a judgement from March of this year, the Supreme Court has overruled the longstanding law on medical consent on the basis that it no longer reflected modern attitudes to patient-centred treatment, failed to reflect the current status of the doctor-patient relationship and failed to give due respect to the ability of patients to understand treatment options.
Previously, the law relating to what constituted ‘informed’ consent for a particular treatment was laid down in the House of Lords cases of Bolitho vs City and Hackney Health Authority (1998) and Sidaway vs The Board of Governors of Bethlem Royal Hospital and Maudsley Hospital (1985). In those two cases the issue of what should be discussed with a patient, and what risk a doctor felt should be brought to the patient’s attention, was considered to be a matter of professional practice. If, therefore, independent experts instructed on a clinical negligence case thought it was reasonable of a doctor not to bring a particular risk to the attention of the patient, then the doctor had not been negligent. Any failure to warn, was, therefore, assessed against standards that prevailed in the Health Service as at the time of the treatment.
In Montgomery vs Lanarkshire Health Board (Scotland, 2015) the Supreme Court decided that the issue of whether a risk or matter should have been discussed with a patient was not one of negligence, but a matter of patient autonomy, and whether it was right to discuss it with the patient was a matter for the courts and the law, not medical practice. The Supreme Court ruled that the true test in such a case is whether the doctor exercised reasonable care to ensure the patient was aware of the material risk – in the Montgomery case the risk of shoulder dystocia.
Mrs Montgomery claimed that she should have had the option of a caesarean section discussed with her during her pregnancy as well as a vaginal delivery. Mrs Montgomery was small, and she was carrying a large baby such that there was an increased risk that the baby’s shoulder would become stuck, but this risk was not explained to her. It was accepted by both sides that if a planned caesarean section had taken place the shoulder would not have become stuck.
As a result of the shoulder dystocia, delivery was delayed, resulting in a lack of oxygen to her baby, which in turn caused serious brain damage to her child.
During the course of their judgement, the case of Bolitho and Sidaway were overruled by the Supreme Court on the basis that the failure to take into account the knowledge and the wishes of the patient resulted in unacceptable medical paternalism.
Clearly any significant risk- either a large risk that something would occur even if the outcome were small, or a small risk that damage might occur particularly if the damage is very significant – is now, post-Montgomery, something that should be discussed with the patient. Much debate will continue on whether a small risk of slight damage has to be discussed with a patient, and this question has not been resolved, but equally if the risk was slight and the injury itself modest, it is unlikely that such a case would be litigated at all. What is clear that:
- The issue of what should be discussed with a patient is a matter of law not professional practice, and it is for the courts, not doctors, to determine whether there has been a failure to explain risk in the context of a patients consent for treatment.
- The level of obligation imposed on a doctor is now to be determined largely by reference to what a reasonable patient might wish to know. In the modern age of internet access, patients may well be more informed and eager for a more detailed discussion.
- The only exception to this obligation will be in the rare situation that of a therapeutic exception, such that to tell a patient the true position would be positively harmful to his or her health.
- Doctors cannot discharge their obligation by bombarding the patient with statistics about risk. The information has to be given in a clear fashion. Doctors will need to take more care to make clear and careful notes of what has been discussed and explained to the patient.
Sam Montgomery was born in October 1999, yet reference in the judgement of the Court was made to the General Medical council’s 2008 guidance for doctors on obtaining informed consent, so that the decision is, in essence, retrospective. There is, therefore, an argument that cases going back many decades will be capable of litigation and strong arguments as to why the three-year limitation period will not apply.
Both the medical and legal professions will face challenges as to how exactly this case will change actual practice, but it is clear that if a patient truly consents in the full knowledge of the risks, it is highly unlikely that they will be able to complain if that risk in fact materialises. It is then for the patient to ‘own’ their own decisions and as such, would suggest a reduction, rather than an increase, in litigation.