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