Montgomery: A New Dawn for Consent in Clinical Negligence?

The Historical Backdrop 1955: Hunter v Hanley, 1955 SC 200, 206 (Scotland). Per Lord President (Clyde): “To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.”

The Historical Backdrop 1957: Bolam v Friern Hospital Management Committee (1957) 1 WLR 582: Electro-convulsive therapy Three allegations of breach of duty: Failure to administer any relaxant drug; Failure to provide some form of effective manual restraint or control; Failing to warn patient of the risks involved in the treatment.

The Historical Backdrop 1957: Bolam v Friern Hospital Management Committee (1957) 1 WLR 582: A doctor who had acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique. (Dictum of Lord President Clyde in Hunter v Hanley applied.)

The Historical Backdrop 1985: Sidaway v Board of Governors of the Bethlem Royal Hospital & Ors, [1985] AC 871 S left severely disabled - inherent risk of 1-2% of damage to spinal column and the nerve roots materialised. Failure to warn of risk. Breach of duty?

The Historical Backdrop 1985: Sidaway – Majority (Lord Scarman dissenting) The question whether an omission to warn a patient of inherent risks of proposed treatment constituted a breach of a doctor’s care towards a patient was to be determined by an application of the Bolam test.

The Historical Backdrop 1985: Sidaway: Lord Bridge (Keith and Templeman concurring) – There might be circumstances where the proposed treatment involved a substantial risk of grave adverse consequences, in which a judge could conclude, notwithstanding any practice to the contrary, that a patient’s right to decide whether to consent was so obvious that no prudent medical practitioner could fail to warn of the risk, save in an emergency or where there was some other cogent clinical reason.

The Historical Backdrop 1985: Sidaway: Lord Bridge “The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as for example the 10% risk of a stroke from the operation that was the subject of the Canadian case of Riebl v Hughes.”

The Historical Backdrop 1985: Sidaway: Lord Bridge: truthful and full answers required to specific questions from patient Lords Bridge and Diplock: Emphasis on patient’s lack of medical knowledge and vulnerability to making irrational judgements. Role of clinical judgement in deciding how best to communicate.

The Historical Backdrop 1985: Sidaway: Lord Scarman Starting point: patient’s right to make his own decision. Doctor has medical objectives but patient might have other concerns. Question not just one for medical opinion. Duty confined to “material risk” – whether reasonable patient would attach significance to it.

The Historical Backdrop 1992: Australia – Rogers v Whitaker (1992) 175 CLR 479, 486-487: Material risk “if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”

The Historical Backdrop 1999: Pearce v United Bristol Healthcare NHS Trust [1999] PIQR, p53 – Lord Woolf (CA): Was there a significant risk which would affect the judgement of a reasonable patient?

The Historical Backdrop 2003: Wyatt v Curtis [2003] EWCA Civ 1779 – risk of around 1% that chickenpox during pregnancy might result in brain damage. Sedley LJ [16]: “Lord Woolf’s formulation refines Lord Bridge’s test by recognising that what is substantial and what is grave are questions on which the doctor’s and the patient’s perception may differ, and in relation to which the doctor must therefore have regard to what may be the patient’s perception.” Test: Whether any catastrophic outcome is sufficiently real.

The Historical Backdrop 2004: Chester v Afshar [2004] 3 WLR 927. Lord Bingham: Rationale of the duty – to enable patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies.

GMC Guidance Good Medical Practice (2013): “Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.”

GMC Guidance Consent: patients and doctors making decisions together (2008): “The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options, and if so which one.”

GMC Guidance Consent: patients and doctors making decisions together (2008): Doctor must tell patient if treatment might result in a serious adverse outcome. Includes where risk is very small. Doctors should tell patients about less serious complications if they occur frequently.

2015: Montgomery v Lanarkshire Health Board [2015] 2 WLR 768

Key points Changing paradigm of the doctor-patient relationship: The informed patient. Focus on self-determination reflecting societal and legal changes. “Material risk”, and alternatives. Risk cannot be reduced to percentages: Fact-sensitive.

Para 87 “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…”

Materiality? “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 future High Court cases post-Montgomery: A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 FM v Ipswich Hospital NHS Trust [2015] EWHC 775 Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058

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