Certainly the decision in Montgomery v Lanarkshire Health Board has clarified the law and brought it in line with what clearly has been the pragmatic approach of the NHSLA for some time. In many respects the decision directly reflects, enshrines and applies the established guidance given to doctors by the General Medical Council.
The question in practitioners’ minds will be whether the Montgomery case will encourage more litigation when the principle focus in the case is on the consent issues. For the reasons set out below I think the Supreme Court’s decision will embolden clinical negligence to pursue many more consent cases.
It was only in December 2013 at a seminar on Bile Duct surgery in London that a senior lawyer at Irwin Mitchell boldly stated that very few cases were ever successful when the claim was based solely on “consent issues.” That was certainly true as many lawyers, solicitors and/or counsel, were not at all keen to pursue cases where the sole issue was “consent to treatment”.
As an experienced practitioner I was one who was always keen to carefully analyse the facts and intrigued by the idea of the “enquiring patient” who seemed long ago to have acquired some special status in this area of law. It is instructive to note that this was considered in the case of Pearce v United Bristol NHS Healthcare Trust, (1999) 48 BMLR 118 in which Lord Woolf observed:
“If patients make clear they have particular concerns about certain kinds of risk, you should make sure they are informed about these risks, even if they are small or rare. You should always answer questions honestly”.
I had a recent amputation case where the Defendant NHS Trust expressly admitted breach of duty because the hospital doctors failed to advise the Claimant of the risks associated surgery on diseased knee joint and failed to point out that there was the option of conservative treatment which would not pose any of the same risks. The case settled in 2014 for £1.25 million.
Montgomery gives primacy to the principle of unfettered patient autonomy thus vindicating Lord Scarman in the celebrated but retrogressive case of Sidaway v Board of Governors of the Bethlem Royal Hospital  AC 871.
The new duty which doctors must apply is one to “take reasonable care to ensure that a patient is aware of the material risks of injury that are inherent in treatment”, and “of any reasonable alternative or variant treatment”.
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”.
In light of Montgomery the important questions now to be considered in a typical clinical negligence case are as follows:
1. Does the patient, and where appropriate the parents, know about the material risks of the treatment proposed?
i)In particular what sort of risks would a reasonable patient in the patient claimant’s position want to know?
ii)In particular what sort of risks would this particular patient want to know?
This makes the position of the enquiring patient in this internet age when so much medical information is available at the click of the mouse.
2. Has the patient been told about the reasonable alternatives for treatment?
3. Has reasonable care been taken to ensure that the patient actually understands all of the information provided to the patient by allowing time for reasonable questions to be asked by the patient, and where appropriate the parents?
4.Do any of the exceptions to the duty to disclose risk apply on the facts of the particular case?
This includes the situation where the patient did not want to know about the risks and the so-called “therapeutic exception”, where disclosures to the patient would be detrimental to the patient’s health.
All of the above seeks to empower patients and is a welcome development. It is also interesting to note that the Supreme Court has chosen to adopt the late Lord Bingham’s approach to the development of the law by “keeping in step” with other jurisdictions and in particular North America and Australia.