Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.

On 11 March 2015, the Supreme Court unanimously agreed that Nadine Montgomery should succeed in her claim against NHS Lanarkshire following a birth complication during the delivery of her son in October 1999, which resulted in him suffering severe disabilities.

The risk of shoulder dystocia (a birth complication where the baby’s shoulders are too wide to pass through the mother’s pelvis) should have been discussed with Montgomery, as should the alternative of birth by caesarean section, the court found.

Consent after Montgomery:

  • The patient’s consent must be obtained before treatment interfering with her bodily integrity is undertaken, and an adult of sound mind is entitled to decide which, if any, of the available treatments to undergo. A patient may decide not to know what her risks and options are;
  • The doctor’s duty is 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. In order to advise, the doctor must discuss the risks and options available to the patient;
  • What is a material risk? The test 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 [an objective test], or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it [a subjective test];
  • The significance of a given risk is fact-sensitive, and sensitive to the characteristics of the patient;
  • The therapeutic exception: this permits doctors to withhold information from a patient if disclosure would be seriously detrimental to the patient’s health, or in circumstances of necessity. This is limited, and should not be abused.

What now?

Arguably, this decision does not change things, and merely embodies social, medical and legal developments in the 30 years since the analysis of the duty to warn in Sidaway v Board of Governors of the Bethlem Royal Hospital (1985).

This latest ruling also confirms that the Bolam test (Bolam v Friern Hospital Management Committee (1957)) no longer applies when a doctor is advising a patient of the risks of the proposed treatment.

Crucially, the court (not the medical profession) will decide what a ‘material risk’ is, and whether the doctor took ‘reasonable care’ in the principles now set out.

More litigation on the way?

The Supreme Court is hopeful that the approach of making patients aware of risks and of respecting a patient’s autonomy and right to decide their own treatment will encourage patients to take ultimate responsibility for their choice of treatment, in the event things go wrong, and this may discourage litigation in the future.

However, it is more likely that this ruling will result in more litigation in the foreseeable future. The Supreme Court appreciated this, but considered that this is easily trumped by the protection of patients from risk of injury they would otherwise have chosen to avoid and, fundamentally, by respect for the dignity of patients.

The further litigation will arise from questions such as what is a ‘material risk’, and to what extent is a doctor required to delve into a patient’s personal background so as to ‘reasonably be aware’ of what a patient might attach significance to.

Also, disputes are likely to arise as to whether the patient understood the information provided to them so as to appreciate the risks and in that sense give ‘informed’ consent.

On a practical level?

There will be additional pressures on clinicians, as clinicians will need to discuss all relevant matters with their patients in as much detail as possible so as not to miss anything that the patient might attach significance to.

As ever, good record keeping is essential, and clinicians would be well advised to record in the patient’s records, for their and their patient’s protection, the risks and options of treatment discussed, and the patient’s decision. If a patient chooses not to know of the applicable risks, this should be recorded.

This defensive approach is not ideal, but will be the safer option until the courts provide the further clarification needed.

Heather Grimbaldeston is a partner in the healthcare team at Plexus Law

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