05 MAY 2015
The 'Rippling' effect of Montgomery v Lanarkshire Health Board
The Supreme Court held that:
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. 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 doctor is however entitled to withhold
from the patient information as to a risk if he reasonably considers that its
disclosure would be seriously detrimental to the patient's health. The doctor
is also excused from conferring with the patient in circumstances of necessity,
as for example where the patient requires treatment urgently but is unconscious
or otherwise unable to make a decision. It is unnecessary for the purposes of
this case to consider in detail the scope of those exceptions.'
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This would suggest that our NHS will now have to adjust in two major respects: first, it will have to organise its method of obtaining the patient’s consent much better, and secondly, it may find that more patients will opt for treatments which either directly cost more, or take up more hospital time.
The doctor is under a duty to take 'reasonable care to ensure that his patient is aware of any material risks involved in any recommended treatment'. Will it any longer be a proper exoneration of that duty for the consent to an operation to be obtained by a doctor other than the one who is to perform the surgery? Lord Kerr stressed that 'the doctor’s role involves dialogue ….'; he also noted that the dialogue would include that, 'the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives ….'.
It is likely to be rare for that to be achievable by a doctor who had not carried out any of the previous examinations of the patient, or considerations of any results of tests or other diagnostic material, such as x-ray or CT scans.
How will it any longer be proper to obtain consent immediately before any radical treatment (such as surgery) is to take place, rather than in an out-patient appointment? If this 'dialogue' is to have any real meaning, then how can it be done in an atmosphere when the patient has already been admitted to Hospital for the proposed treatment and is expecting it to happen then and there? The pressure on the patient to agree may provide strong evidence that there was not true 'consent', but submission.
What is 'material' in relation to risk must now be much more patient-focused, rather than on whether the Doctor thinks that a responsible body of similar doctors would or would not warn the patient of that risk. The doctor has to consider whether a 'reasonable' person in the situation of that patient, would be likely to think of the risk as 'significant'. The doctor may consider a risk of a small magnitude (1 / 1000, or even smaller) as one which can reasonably be ignored; but now the doctor will have to consider whether a reasonable person in that patient’s situation would consider that risk 'significant'. A small risk (1 / 1000) of an event which might result in a major outcome for that patient, if it eventuates, for example: death, cannot be 'reasonably' ignored. Moreover, doctors will have to learn how to explain such risks in language which is ‘digestible’ for each particular patient. Experience shows that the NHS often refer to leaflets, some of which can be years out of date, and which can relate to national statistics, rather than being specific to the Hospital at which the treatment is going to take place. Will that be sufficient?
One can foresee problems with how 'consent' is now to be recorded, not least so as to protect the NHS from claims based on lack of proper consent. The standard form currently used in the NHS offers a brief (inadequate) space. Will it have to be re-formatted? Will doctors have them available in their out-patients clinics? They will surely be best advised to set out in much more detail what they have informed the patient about, and record the patient’s response. Perhaps doctors will move towards setting this out in much more detail in their notes (perhaps, additionally, obtaining the signature of their patient on the notes).
The Bolam test of negligence still applies to how a doctor/surgeon performs his treatment, but now the doctor will need to be clear about giving 'reasonably careful' advice as to which of several possible types of treatment might be best employed. Reasonable care must be discharged in the decision as to what information is imparted, and in ensuring that the information is accurate enough for the patient to make a proper judgment about it. Doctors are going to need to have up-to-date information available to them at the point when they engage with the patient on this topic. In the context of hospital treatment where there may be pressures on budgets or resources, they may need to stand back from those pressures in the advice they give. For example, in the situation where a procedure could be done laparoscopically, or by laparotomy. A laparoscopic procedure can be done as a day case and mean that a hospital can achieve several such operations in a day because the majority of the patients will be discharged within 12 hours. For the Hospital this is very good news. Laparotomies, however, create large wounds which require longer stays in Hospital. The Hospital policy may be to encourage the use of laparoscopic surgery – but the doctor’s duty will be to explain to that patient given his or her personal, as well as medical, situation, which, in his opinion, is the preferable option.
Because the Supreme Court’s decision is declaratory of the common law, it follows that it applies to all procedures being undertaken now, regardless of whether all doctors have adapted to the change. It also follows that it applies to all current litigation. Practitioners will need to consider whether their cases need to be re-framed to take into account this 'new' approach.