In March this year the Supreme Court passed judgment in the case of Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11 which on appeal ruled that Mrs Montgomery should have been given the necessary information to give informed consent about the treatment she was to receive during the birth of her child. In October 1999 Mrs Montgomery gave birth to her son after severe complications during birth. The Supreme Court reversed the judgment given at first instance and on appeal and in March 2015 ruled that;
“it is a mistake to view patients as uninformed, incapable of understanding medical matters” and that “an adult person of sound mind is entitle 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.”
This is ground-breaking new law for patients in respect of giving consent. The legal test when providing medical treatment is the test as set out following the case of Bolam. Previously in legal cases in relation to issues of consent, the case of Sidaway prevented an action being brought against a doctor who explained to the patient only the same as a “reasonable” doctor would have done in the same circumstances.
What the Supreme Court unanimously ruled in the case of Montgomery was that was Mrs Montgomery was deprived of the opportunity to make an informed decision and receive all the relevant medical information and the “material risks” regarding the delivery of her baby.
The “material” risk in this case was that shoulder dystocia (where a baby’s shoulders are too wide to be delivered naturally) was a complication that Mrs Montgomery was at risk from due to diabetes predisposing her from having a larger than average baby. It was successfully argued that this material risk should have been discussed with her and importantly the alternative method of delivery of her baby via a caesarean section.
As a result of the complications of shoulder dystocia during the birth of her baby, he was starved of oxygen for 12 minutes during delivery. This caused Mrs Montgomery’s son to develop cerebral palsy of a dyskinetic type, due to the deprivation of oxygen during his birth. Had Mrs Montgomery been provided with the facts before delivery she confirmed that she would have elected for the caesarean alternative to have been carried out and her baby would have been born uninjured without the severe disabilities from which he now suffers.
The ruling in the Montgomery case will be controversial among doctors and treating medical practitioners who will be concerned about the opening of the flood gates regarding the information they must provide to patients and to what level. There are concerns regarding the inconsistencies this new ruling might create. Treating doctors will have to judge what information might be significant to a patient, some patients may not want to know the risks and doctors will have to be mindful of good note taking, record keeping and information delivered to a patient. It may also be difficult for some patients to understand and balance the risks before them and this might lead to difficulties in patient care management and possibly in decision on the part of patients.
For doctors, the case of Montgomery developed three further points to consider when informing patients. The first is that risks are “fact sensitive” so they must be tailored to the individual patient. Secondly, the doctor must engage with the patient in a discussion about treatment. Lastly, for a patient who is unable to “grasp” technical information in relation to risks of surgery and treatment pathways, the Court said in Montgomery that this situation can be taken into account, but it comes with a caution, that use of the “therapeutic exception should be limited and not abused”.
All quotes in this blog are taken from the full judgment in this case can be read online by searching for: Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11
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