Montgomery v Lanarkshire Health Board (2015)
The Case:
Nadine Montgomery was in the late stages of pregnancy when complications arose. At this point she was not told about the possibility of having a Caesarian section nor that, on account of her type 1 diabetes, there was a 9-10% risk of shoulder dystocia if she proceeded with vaginal birth.
The risk of dystocia materialised and her son was born with complex disabilities. She claims that she was not told of this risk nor the option of Cesarean section. Furthermore, should she have been given the latter option she reported that she would have taken it. She therefore, claimed damages in negligence.
The Ruling:
The Supreme Court ruled in her favour and claimed that she should have been told of the risks and alternative forms of treatment. They also ruled that the doctor had a duty to inform the patient of the material risks, which we will look at further, associated with the treatment options available. In the past, assessing whether a doctor had provided adequate consent relied on the Bolam Standard of whether a reasonable doctor in the same situation would have acted in the same manner. This case changed this narrative:
“To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient's position would be likely to attach significance to the risk.”
Material risks:
This case brought in the concept of a material risk. Material Risks can be broadly understood as:
(I) Risks that a reasonable person in the position of the patient would likely attach significance to, or,
(II) Risks the doctor should reasonably be aware that the particular patient would attach significance to.
As rules in this case a material risk cannot be ‘reduced to mere percentages.’ In other words, even if there is a low chance of the risk materialising the patient should be made aware of it if they are likely to attach significance to it. For example, if we imagine a trumpet player is going to have a procedure which has a low chance of effecting their ability to play the trumpet they ought to be informed of this as it is likely to be of great significance to their life and profession. The onus is also on the healthcare practitioner to try to find out what is important to the patient and whether this would effect what they were deem to be a material risk to a particular treatment. This was confirmed in the case:
“First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.” (Montogmery v Lanarkshire Health Board (2015)).
There are two exceptions to the duty to provide the patient with material risks:
(I) Therapeutic Privilege - This is in cases in which the doctor is excused from disclosing information to a patient if they believe it would be "seriously detrimental to the patient's health."
(II) Emergency Situation - which meant that there was not time to inform the patient of the material risks.
A Dialogue approach to consent:
This case also highlighted the need for a dialogue approach to consent taking. This meant that the doctor and patient would have a joint role in the consent taking process. The aim was to make the patient more informed and allow them to make an autonomous choice on what treatment they wanted to proceed with. It also highlighted that healthcare practitioners should make sure that patients have the opportunity to ask any questions they may have about treatment options and their risks:
“Secondly, the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.” (Montgomery v Lanarkshire Health Board (2015)).
This section of the case makes it clear that simply signing a consent form or bombarding the patient with information does not mean informed consent has been gained. The healthcare practitioner ought to make sure that the patient has understood the information given to them. Furthermore, if a consent form is used, the healthcare practitioner should still go through all the information relevant to the patient and answer any questions they may have.
The idea of the dialogue approach was not novel and built on the GMC Guidance document on consent - you can find the full link to this text here. The dialogue approach:
“8. The exchange of information between doctor and patient is central to good decision making. It’s during this process that you can find out what’s important to a patient, so you can identify the information they will need to make the decision.
9. The purpose of the dialogue is:
(a) to help the patient understand their role in the process, and their right to choose whether or not to have treatment or care,
(b)to make sure the patient has the opportunity to consider relevant information that might influence their choice between the available options
(c) to try and reach a shared understanding of the expectations and limitations of the available options.”
(GMC - Decision Making and Consent).
In Summary:
This case introduced the concept of material risks and a dialogue approach to the consent process. The overall aim of this is to make sure the patient is more informed in the consent taking process and to make sure they have all the relevant information needed for them to make their decision on treatment. This process is personalised and tailored to each patient again promoting patient autonomy and choice.
You can read the full case transcript below:
https://www.supremecourt.uk/cases/docs/uksc-2013-0136-judgment.pdf
Or you can watch the video below which goes through the case in great detail, as well as the previous gold standard for consent - the Bolam test.