Consent in clinical negligence claims is a controversial issue, with a number of significant judgments relating to it. Many of these cases are outdated, and as the doctor-patient relationship changed, the law was slow to catch up, until the landmark ruling in Montgomery v Lanarkshire Health Board  UKSC 11 (‘Montgomery’).
The phrase “doctor knows best” was once used ubiquitously. However, patients are now much better informed than 60 years ago when the previously leading case, Bolam v Friern Hospital Management Committee  1 WLR 582 (‘Bolam’), was decided.
The decision in Bolam provided that if a reasonable body of doctors would take the same approach in the case to be decided, a doctor would not be found negligent. Patient consent has been an evolving issue since Bolam.
In Sidaway v Board of Governors of the Bethlem Royal Hospital  AC 871 (‘Sidaway’), the court adapted Bolam’s decision on consent, holding that what the treating doctor is required to disclose depends on questions asked by the patient. Even with this in mind, Sidaway provided that answers given must be judged in the context of good practice rather than what a reasonably prudent patient might want to know. Although patients could now be expected to ask questions, it was still up to the doctor to decide what patients should know.
In the United Kingdom this approach remained, on the whole, unchanged until the decision in Montgomery.
Mrs Montgomery, a 5’1”, type 1 diabetic, was told she was going to have a large baby. There is a foreseeable risk of difficulty delivering a baby’s shoulders in diabetic births, known as shoulder dystocia which can be avoided by opting for an elective caesarean section. At no point, however, did the obstetrician give any warnings about the risk of shoulder dystocia or how it could be avoided. Her reasoning being that if you ‘mention to any expecting mother there is a very small risk of the baby dying in labour, everyone would ask for a caesarean section’. Mrs Montgomery proceeded with a natural delivery and her son suffered shoulder dystocia resulting in irreversible brain damage.
The case, originally heard in the Scottish courts, applied Sidaway on the basis that Mrs Montgomery only made expressions of general anxiety and did not ask about specific risks. It was decided that the duty to disclose the risk (of shoulder dystocia) or offer alternative delivery had not arisen.
The Scottish court went as far to say that ‘too much in the way of information … may only serve to confuse or alarm the patient; it is a question for the experienced practitioner to decide, in accordance with normal and proper practice, where the line should be drawn in a given case’.
The decision was, however, appealed and reached the Supreme Court in 2015. The Judges rejected this application of Sidaway in the Montgomery case. They decided, for the following reasons that it was unsatisfactory to say a duty to disclose had not arisen simply because a patient had failed to ask a specific question:
It was held that in deciding whether a risk or alternative treatment should be disclosed, a doctor should not just take into account good professional practice but the circumstances of the specific patient should be considered. The decision in Montgomery reflects the changing doctor-patient relationship. In opening up avenues for discourse between the two about treatment options and risks, patients should be enabled to better understand their condition, risks (as well as benefits) of what the doctor proposes and what alternatives are available to them. In turn, this should allow doctors to better understand not just that particular patient but also better appreciate the common fears and queries of future patients.
Importantly, Montgomery legitimises a patient’s right to ask questions of their doctor. Whilst most patients will inevitably revert to asking ‘what would you recommend?’ patients should now have access to more information allowing them to give informed consent as the nature of the doctor-patient relationship continues to evolve and change.
For further information, please contact Clare Thompson, Partner at Hay & Kilner
Call: 0191 232 8345