Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test.
The medical profession has for a long time been a petri dish for paternalistic practices and attitudes. The doctor knows best. The doctor’s judgment is not to be questioned. The courts have made inroads into this approach but the test used to ascertain if a doctor has breached their duty of care to a patient has until recently been couched in terms of what is deemed reasonable in the profession. The case of Montgomery v Lanarkshire Health Board[1] appeared to make further inroads into the traditional approach as applied to the provision of information to patients of the risks involved in a procedure. For some, Montgomery represents a defining moment in medical law which marks the end of medical paternalism. However, such fanciful conclusions overestimate the reality. Medical professionals have not been completely stripped of the ability to influence and decide on what is best for the patient. Paternalism has been dealt a blow by the case but it still survives to an extent. The main argument of this paper is that the case strikes the right balance between medical professionals and the patient.
Case Facts
M was a patient under the care of C. C was a consultant obstetrician for the Lanarkshire Health Board. M required care from C as she was diabetic and therefore it was likely she would have a large baby. C failed to advise M that there was a 9-10% chance that the baby would suffer shoulder dystocia during labour as in C’s opinion the risk of complications as a result of dystocia was small. During labour the baby was deprived of oxygen due to an occlusion in the umbilical cord which was liked to shoulder dystocia. The baby was born disabled. M argued that she should have been informed about the risk of shoulder dystocia. Further, M asserted she should have been told that she had an option of having a caesarean section. The lower court rejected M’s argument. The Court of Session concluded that the test for breach of duty of care should be decided by reference to expert medical opinion and applying the Bolam test.
The Supreme Court Decision
The Supreme Court allowed M’s appeal and found that C had breached the duty of care. The Court revisited Sidaway v Board of Governors of the Bethlem Royal Hospital.[2] A case recognised as ‘perpetuating medical paternalism’.[3] In this case, the House of Lords endorsed the Bolam test in that a doctor would not be deemed negligent if he or she acted in accordance with standards that was considered proper by reference to a reasonable body of medical opinion. This approach was criticised as being too doctor centric and one that could absolve a doctor of liability if he or she followed a small body of practice that could support the choice made.[4] After Sidaway the courts tended to apply the judgment in a restrictive and overly paternalistic way.[5] This harped back to the days of Lord Denning in Hatcher v Black[6] where the learned judge excused a doctor from lying to a patient as it was in their own interests. This approach was further criticised in that it gave too much control to doctors and did not recognise the voice of the patient.[7]
In Montgomery, the Supreme Court emphasised and preferred the dissenting judgment of Lord Scarman in Sidaway. Here, the learned judge emphasised that it was a fundamental human right that a patient should make their own decisions in relation to medical treatment.[8] Lord Scarman continued that if a person suffers injury as a result of a risk that is undisclosed, and this was a risk that a doctor showing reasonable care would have disclosed, then the injured patient would have a claim in negligence.[9] Further, the Supreme Court recognised that lower courts had to some degree departed from the Bolam test in relation to the advice given by doctors to their patients. In Pearce v United Bristol Healthcare NHS Trust[10] and in Wyatt v Curtis[11] the courts have embraced a test which shifts the focus towards the patient and what a reasonable patient would want to know.
The Supreme Court further noted that since Sidaway was heart there has been a marked shift towards recognising personal autonomy in a broader set of circumstances. Where a patient was undergoing a procedure which may have a ‘profound effect’[12] on him or her then that patient should be advised of alternative treatments. Finally, the court noted that the Human Rights Act 1998 had acted as a catalyst in imbuing the courts with a new appetite to recognise the principle of self-determination.[13] The Court note recent developments in the jurisprudence of the European Court of Human Rights showing a move away from medical paternalism.[14] The Court also noted that in practical terms, guidance published by the Department of Health and the General Medical Council, adopted the approach in Chester which is more patient-focused and implied that this was the accepted approach within the profession.[15]
According to the Court, the Sidaway approach no longer reflected reality. The paternalistic doctor-patient relationship was fading away. Patients were more willing to challenge clinical judgment.[16] Lord Kerr concluded that modern society pointed ‘away from a model of the relationship between the doctor and the patient based upon medical paternalism ’.[17] And the provision of health care services was becoming more diverse and modern.[18] Furthermore, the majority opinion in Sidaway itself has been criticised as lacking coherence and a uniform voice among the judiciary leading to confusion in its application.[19]
The Court criticised the analysis of the majority judgment in Sidaway to the extent that it endorsed the use of the Bolam test in relation a doctor advising of risks involved in a proposed treatment. The Court saw no reason why this approach should be maintained. The Supreme Court concluded that an adult of sound mind should be able to decide which treatment to undergo.[20] Consent had to be obtained for treatment involving an interference with bodily integrity. The duty of care was to take reasonable care to ensure a patient is made aware of any material risks involved in a treatment and of any reasonable alternative that may be available.[21] Materiality was defined by the Supreme Court as whether in the particular circumstances a reasonable person in the patient’s position would deem the risk to be significant.[22] In the alternative, it is a risk that a doctor did or reasonably should know that a patient would attach significance to such risk.[23]
Paternalism
Paternalism in medical law is a recurrent theme. For example, paternalism is a recurrent subject in the debate on assisted suicide.[24] It also extends to other areas such as sports law in relation to the risk of cardiac problems in professional football where there is ‘no place for paternalism’[25] where a player should be advised of real risks to health and life.
It is founded upon the idea that the ‘doctor knows best’ and that deference should be shown to their clinical judgment. Paternalism is particularly acute when the patient is a child.[26] The idea that the doctor knows best has been engrained into the field of medicine for centuries.[27] The law tended to defer to the expertise of the medical profession in judging the standards expected.[28]
When we speak of paternalism we look at the duty of disclose from a doctor-centred approach.[29] However, critics and the judiciary suggest that the idea of medical paternalism and a doctor-centred approach in the traditional sense is falling away. Lord Steyn notes that ‘[i]In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery’.[30] The General Medical Council recognises that modern medicine does not fit this conventional stereotype.[31]
Reaction to Montgomery
Many commentators have categorised the case as a victory for personal autonomy and the demise of paternalism.[32] For some, the case represented a move ‘away from paternalism on the part of doctors, to autonomy and appropriately informed choices on the part of patients’.[33] It aligned the United Kingdom with other jurisdictions. The approach in Canada is categorised as one that preserves patient autonomy.[34] A similar approach is observed in the United States.[35] According to Elliot the decision marks a legal and medical shift ‘away from a model of the relationship between the doctor and patient based upon medical paternalism, to one which recognises and needs to be respectful of the autonomy and dignity of patients’.[36] It represents an individualised approach to patient care. According to Jackson this is to be commended as people have different experience, values and beliefs in society and therefore the wishes and opinions of a particular individual are rightly to be considered.[37]
The most significant aspect of the judgment is that it shifts the assessment of the duty of care from one that rests upon the judgment of the medical profession to one that rests upon ‘the needs, concerns and circumstances of the individual patient, to the extent that they are or ought to be known to the doctor’.[38] For Vickery ‘[t]he age of paternalistic medical practice can be hailed as being replaced with patient-centred decision-making’.[39] It also accords with the General Medical Council which endorses ‘the replacement of paternalism with a model based on partnership between doctor and patient.’[40] It will also have repercussions throughout medical practice. For some, Montgomery is more likely to be recognised as all-encompassing in medical practice and may also dictate the path of ‘consent in health research and innovative treatment’.[41]
However, ‘the idea of a fully autonomous patient making choices completely independent of the doctor’s input does not reflect the complex reality of medical decision making, nor does the caricature of a paternalistic doctor riding roughshod over patients’ objections.’[42] The doctor is still a core, if not the core, cog in the machinery of the decision-making process. As stated by the Supreme Court, a doctor must engage in dialogue with the patient so that a patient understands the seriousness of their condition, the benefits and risks involved of treatment and any alternatives so that the patient’s decision is an informed one.[43] A doctor cannot simply provide medical literature and get a signature to show consent[44] – the approach needs to be more holistic.[45]
However, it should also be noted that the individualised approach might produce unwanted effects. It may lead to a tiered system whereby some patients understand what the doctor says and others do not.[46] While the Supreme Court was quick to dismiss this concern by stating that it was erroneous to ‘view patients and uninformed, capable of understanding medical matters’[47] – this is not entirely convincing. Therefore, doctors should be trained to ensure they can validate and check that a patient truly understands what is being explained to them. Here the role of the doctor is key if the patient cannot understand. This is a milder form of paternalism which survives in that in this situation a doctor will know best if a patient is unclear of the risks involved and the doctor must takes steps to remedy that.
Finally, it is crucial to state that Montgomery applies to cases involving disclosing material risks. The stimulus statement implies that the case has led to end of paternalism in all clinical practice. That assumption is based on a misreading of the case. Montgomery represents a shift in risk disclosure where it is not caught by exceptions. The Supreme Court noted that the doctor retains the right to withhold information about the risks involved in a procedure if the doctor holds a reasonable belief that disclosure would have a highly negative effect on the patient.[48] This is one area where a doctor has an amount of discretion. It is an area that may potentially exploited by doctors who retain the traditional ‘doctor knows best’ attitude that has long since been eroded. In addition, a doctor does not need to disclose risks where there is a medical necessity e.g. where a patient requires an urgent medical procedure.[49] This is entirely logical considering that the aim of the law is to ensure the patient makes an informed choice which cannot be achieved in these circumstances. For those who point to these therapeutic exceptions as a sign of enduring medical paternalism that argument is not convincing. In practical terms, the number of times that they will need to be used will be negligible when compared to the situations in which the duty of disclosure will have to be fulfilled. Further, if medical paternalism means that the ‘doctor knows best’ then these exceptions are entirely justified when looked through that lens as the patient is certainly not in a position to know best.
According to the Court of Appeal in Webster v Burton Hospitals NHS Foundation Trust[50] the Supreme Court ‘set out emphatically why such an approach [applying the Bolam standard to disclosing risk] to the issue of medical treatment was wrong’.[51] In Spencer v Hillingdon National NHS Trust[52] the court concluded that:
Montgomery is clearly a decision which demonstrates a new development in the law as it relates to informed consent…the ordinary sensible patient would be justifiably aggrieved not to have been given the information at the heart of this case when appraised of the significance of it.
The courts are embracing the approach in Montgomery and rightly so. The approach in Montgomery is a moderate one in that it still retains a place for the medical profession in the decision-making process. An approach that was completely controlled by the patient may lead to unwanted circumstances. The judgment in Montgomery shows the judiciary moving towards a depiction of patients as consumers.[53] This is echoed by language in the National Health Service Consultation which states that ‘[y]ou [the patient] have the right to make choices about the services commissioned by NHS bodies and to information to support these choices’.[54] However, it is important not to push the decision-making process too far towards the patient. Sometimes the doctor does know best.
Conclusion
The aim of this paper has been to explore the extent to which the decision in Montgomery has signalled the end of paternalism in medical practice. Much depends on how we define medical paternalism. If we subscribe to the traditional view that it is constructed upon the notion that the ‘doctor knows best’ then there is a strong argument that the case represents the death knell for paternalism. However, a more moderate approach is advanced here. The decision confirms that a health professional must disclose risks of treatment and any alternatives subject to the two exceptions noted above. The exceptions show that paternalism still endures in the circumstances to which they apply. However, even where the exceptions do not apply, it is argued that a softer view of paternalism still survives, as the doctor remains a key driver in the decision-making process. While the approach is now a partnership approach between doctor and patient the doctor will still drive the process forward. Further, health professionals can choose not to disclose risks where they hold a reasonable view that disclosure would have a detrimental impact on the patient. That is a clear example of the preservation of paternalism in this field of medical law. In conclusion, the case of Montgomery has eroded the notion of traditional paternalism in relation to disclosure of risks in medical law, however, it has not spelt the end of paternalism in the medical profession.
List of Cases and Statutes
UK Cases
Blyth v Bloomsbury HA [1993] 4 Med LR 151
Chester v Afshar [2004] UKHL 41
Gold v Haringey HA [1988] QB 481
Hatcher v Black 1 July 1954 WL 42295 (QBD) The Times, (London) July 2, 1954
Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] AC 1430
Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 (HL)
Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62
Wyatt v Curtis [2003] EWCA Civ 1779
Other Cases
Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia
Reibl v Hughes (1980) 114 D.L.R. (3d) 1
Bibliography
Textbooks
Jackson E, Medical Law: Text, Cases and Materials (4th edn, Oxford University Press 2016) 210
Tallis R, Hippocratic Oaths: Medicine and its Discontents (Atlantic 2004)
Teff H, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship (Clarendon Press 1994)
Amirthalingham K, ‘Medical Negligence and Patient Autonomy – Bolam Rules in Singapore and Malaysia’ (2015) 27 Singapore Academy of Law Journal 666
Chan S et al, ‘Montgomery and Informed Consent: Where are We Now?’ (2017) The British Medical Journal 357
Draghici C, ‘The blanket ban on assisted suicide: between moral paternalism and utilitarian justice’ [2015] 3 European Human Rights Law Review 286
Elliot T, ‘A Break With the Past? Or More of the Same’ (2015) 31(3) Professional Negligence 190
Foster C, ‘The Last Word on Consent?’ (2015) 165 New Law Journal 7647
Heywood J et al, ‘RIP Sidaway: patient-oriented disclosure—a standard worth waiting for? Montgomery v Lanarkshire Health Board [2015] UKSC 11’ (2015) 23 Medical Law Review 455
Johnston L, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar: Part 1’ (2015) 18 Scots Law Times 81
Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Professional Negligence 128
Miola J, ‘On the Materiality of Risk: Paper Tigers and Panaceas’ (2009) 17 Medical Law Review 76
McGrat CP, ‘Trust Me, I’m a Patient…Disclosure Standards and the Patient’s Right to Decide’ (2015) 74(2) Cambridge Law Journal 211
Mchale J, ‘Innovation, informed consent, health research and the Supreme Court: Montgomery v Lanarkshire – a brave new world?’ (2017) 12(4) Health Economics, Policy and Law 435
Montgomery J et al, ‘Montgomery on informed consent: an inexpert decision?’ (2016) 42 Medical Ethics 89
Reed E, ‘Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient’ (2015) 19 Edinburgh Law Review 360
Tavares N, Webster (a Child) v Burton Hospitals NHS Foundation (2017) 2 Journal of Personal Injury C93
Vick L, ‘Sports Injuries and the Liability of Doctor and Club’ (2015) Coventry law Journal 324
Vickery S, ‘Revisiting Consent: Communication of Risks, Medical Paternalism Versus Patient Autonomy’ (2015) 20(1) Coventry Law Journal 40
Official Published Sources
Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal recognition before the law (2014)
Department of Health (DoH), The NHS Constitution: the NHS belongs to us all (London DH Publications, March 2013).GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008).
[1] [2015] UKSC 11; [2015] AC 1430.
[2] [1985] AC 871 (HL).
[3] Kumaralingham Amirthalingham, ‘Medical Negligence and Patient Autonomy – Bolam Rules in Singapore and Malaysia’ (2015) 27 Singapore Academy of Law Journal 666, 667.
[4] Lesley Johnston, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar: Part 1’ (2015) 18 Scots Law Times 81, 83
[5] Gold v Haringey HA [1988] QB 481; [1987] 2 All ER 888; Blyth v Bloomsbury HA [1993] 4 Med LR 151.
[6] 1 July 1954 WL 42295 (QBD) The Times, (London) July 2, 1954.
[7] J Miola, ‘On the Materiality of Risk: Paper Tigers and Panaceas’ (2009) 17 Medical Law Review 76.
[8] Sidaway (n 2).
[9] Ibid.
[10] [1999] ECC 167.
[11] [2003] EWCA Civ 1779.
[12] Montgomery (n 1).
[13] Ibid.
[14] Rogers v Whitaker (1992) 175 CLR 479; Reibl v Hughes [1980] 2 SCR 880.
[15] Montgomery (n 1) [71] (Lord Kerr).
[16] Montgomery (n 1) [71]-[72] (Lord Kerr).
[17] Montgomery (n 1) [72].
[18] Ibid.
[19] C Foster, ‘The Last Word on Consent?’ (2015) 165 New Law Journal 7647, 8.
[20] Montgomery (n 1).
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24]Carmen Draghici, ‘The blanket ban on assisted suicide: between moral paternalism and utilitarian justice’ [2015] 3 European Human Rights Law Review 286.
[25] Laurence Vick, ‘Sports Injuries and the Liability of Doctor and Club’ (2015) Coventry law Journal 324.
[26] Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal recognition before the law (2014) [36].
[27] R Tallis, Hippocratic Oaths: Medicine and its Discontents (Atlantic 2004).
[28] Hugh Teff, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship (Clarendon Press 1994).
[29] Judy Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Professional Negligence 128, 130.
[30] Chester v Afshar [2004] UKHL 41 [16] (Lord Steyn).
[31] GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008).
[32] R Heywood et al, ‘RIP Sidaway: patient-oriented disclosure—a standard worth waiting for? Montgomery v Lanarkshire Health Board [2015] UKSC 11’ (2015) 23 Medical Law Review 455; J Montgomery et al, ‘Montgomery on informed consent: an inexpert decision?’ (2016) 42 Medical Ethics 89.
[33] Nathan Tavares, Webster (a Child) v Burton Hospitals NHS Foundation (2017) 2 Journal of Personal Injury C93, C95.
[34] Reibl v Hughes (1980) 114 D.L.R. (3d) 1.
[35] Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia.
[36] Tracey Elliot, ‘A Break With the Past? Or More of the Same’ (2015) 31(3) Professional Negligence 190, 193.
[37] Emily Jackson, Medical Law: Text, Cases and Materials (4th edn, Oxford University Press 2016) 210.
[38] Montgomery (n 1) [73].
[39] Sue Vickery, ‘Revisiting Consent: Communication of Risks, Medical Paternalism Versus Patient Autonomy’ (2015) 20(1) Coventry Law Journal 40, 44.
[40] CP McGrath, ‘Trust Me, I’m a Patient…Disclosure Standards and the Patient’s Right to Decide’ (2015) 74(2) Cambridge Law Journal 211, 212.
[41] Jean Mchale, ‘Innovation, informed consent, health research and the Supreme Court: Montgomery v Lanarkshire – a brave new world?’ (2017) 12(4) Health Economics, Policy and Law 435, 452.
[42] Sarah Chan et al, ‘Montgomery and Informed Consent: Where are We Now?’ (2017) The British Medical Journal 357.
[43] Montgomery (n 1) [90].
[44] Ibid.
[45] Tracey Elliot, ‘A Break with the Past? Or More of the Same?’ (2015) 31(3) Professional Negligence 190, 194.
[46] Elspeth Reed, ‘Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient’ (2015) 19 Edinburgh Law Review 360, 366.
[47] Montgomery (n 1).
[48] Montgomery (n 1) [88].
[49] Ibid.
[50] [2017] EWCA Civ 62.
[51] Ibid [26].
[52] [2015] EWHC 1058 (QB).
[53] Mongtomery (n 1) [75].
[54] Department of Health (DoH), The NHS Constitution: the NHS belongs to us all (London DH Publications, March 2013).