UKSC 11 and its application is as many would have expected. While the application of Montgomery
may not have been controversial the principle behind Montgomery
requires closer examination.
The law surrounding disclosure has come a long way from the original principle set down in Decorum XVI of the Hippocratic Corpus that physicians are advised to reveal nothing to the patient of their present or future condition, ‘for many patients through this cause have taken a turn for the worse’. Around two millennia later Lord Templeman echoes the founding scripture when he said, ‘the provision of too much information may prejudice the attainment of the objective of restoring the patient’s health’ (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871 at page 904). The law as it stands, according to the Supreme Court in Montgomery, is neatly summarised by Lords Kerr and Reid (who gave the combined opinion of the the court) at paragraph 87:
‘An 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 decision in Montgomery had the effect of overruling the House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871. The decision of the court in Sidaway is not necessarily complex but their Lordships did take differing opinions about the duty to provide information. Lord Diplock followed the Bolam approach but tempered it in situations which involved ‘highly educated’ patients who would require additional information about the risks. The Diplock approach is at odds with the opinion of Lord Scarman who took the starting point of the patient’s basic human right to make his own decision and reasoned (at page 884-885):
‘If, therefore, the failure to warn a patient of the risks inherent in the operation which is recommended does constitute a failure to respect the patient’s right to make his own decision, I can see no reason in principle why, if the risk materialises and injury or damage is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages.’
The middle way is offered by Lord Bridge when he states (at page 900):
‘I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the 10% risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes 114 DLR (3d) 1 . In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient’s right of decision, could hardly fail to appreciate the necessity for an appropriate warning.’
The approach of Lord Bridge was followed by the Court of Appeal in the decision of Pearce v United Bristol Healthcare NHS Trust  PIQR P53. Lord Woolf MR, giving the leading judgment with which the other members of the court agreed, stated the law as being (at paragraph 21):
‘In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.’
Much criticism had been made of the approach in Sidaway, especially the emphasis on the patient to ask questions as opposed to the doctor providing information; Sedley LJ in Wyatt v Curtis  EWCA Civ 1779 commented (at paragraph 19) that ‘there is arguably something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about’. In addition, Lord Woolf MR criticised the approach in his 2001 Jacobovitz lecture, ‘The judiciary, medicine and ethics’.
What then caused the change in approach in Montgomery? On the one hand, as mentioned above, the perceived burden on the patient as opposed to duty on the doctor was unsustainable in the face of such persistent criticism. Another key reason, as identified by Lords Kerr and Reid (at paragraphs 75-76) is the changing nature of the doctor-patient relationship:
‘Since Sidaway’s case, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession…Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by laws premised on the ability of the citizen to comprehend the information provided.’
While it is clear that there is a difference in relationship between doctor and patient, the following comment of the court is open to question (at paragraph 81):
‘The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based on medical paternalism. They also point away from a model based on a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.’
With respect to the court this appears to be wishful thinking. The doctor-patient relationship has been continuously evolving, as evidenced by the professional guidelines on consent which emphasises a full dialogue, yet litigation levels are on the increase. It is dangerous to make the assumption that information alone will prevent litigation in the event of harm; to do so will lead to difficult situations akin to Chester v Afshar  UKHL 41 in that doctors will be second guessing what could have happened.
What then are the consequences of this change in approach? Is it now the case that the fabled words ‘trust me I’m a doctor’ no longer apply? Is a doctor now more akin to a Google search within their respective specialty, reeling off information that in no way applies to the medical case as presented? Of course not. While the end result is to be welcomed (if only because it provides clarity which means doctors should err on the side of caution) the second leg of the court’s reasoning should be disregarded. Yes, there is more readily available information but this has not changed the fundamental nature of the doctor-patient relationship which is to provide specialist advice based upon the case at hand. The law recognises this and is not as daunting as it may first appear to medical practitioners. The Bolam principle still plays a central role but it is qualified in a manner not dissimilar from Bolitho v City and Hackney HA  AC 232. The law is now firm in its position that where doubt is present providing information is the best course of action. However, doctors are still the adjudicators of what information is reasonable to provide and that is how it should be. A patient seeking too much, unrelated, information is like Icarus flying closer and closer to the sun: it is good at first but will ultimately act against their best interest.
Spencer v Hillingdon: Clinical comment
Professor of Surgery, University of Liverpool
Consultant Surgeon, Aintree University Hospital, Liverpool
The background to this claim goes back to 2005 when the Parliamentary Health Select Committee produced a report on the poor use of deep venous thrombosis (DVT)/pulmonary embolism (PE) prophylaxis and prevention in English hospitals. DVT is the development of blood clot, usually in the deep veins of the calf, due to protracted periods of inactivity, as the muscles of the calf are necessary to pump venous blood against gravity back to the heart. Patients suffering protracted periods of confinement to bed, and those under general anaesthetic are at particular risk, in addition to those undergoing certain operative procedures (e.g. orthopaedic hip surgery) and suffering specific conditions (e.g. cancer). PE is the frequently fatal complication of DVT, when the clot dislodges from the point where it originated in the calf and travels to the heart where it blocks the pulmonary artery that takes the blood from the right side of the heart to the lungs.
At that time, over 25,000 people were still dying each year from DVT/PE following admission to hospital and the Select Committee’s report ended by instructing the National Institute of Health and Care Excellence (NICE) to produce national guidance for England which would both identify those at risk of developing DVT/PE and the steps necessary to reduce/prevent the development of DVT/PE. NICE produced this guidance (CG46) in 2007 identifying those at increased risk of DVT/PE, the steps to be taken to identify this cohort, and the measures to be taken to reduce (and hopefully abolish) this risk. However, no major reduction in the incidence of DVT/PE ensued, and so NICE reconvened the guideline development group who then issued revised guidance (CG92) in January 2010. This guidance now defined both a ‘higher risk’ group (those defined at higher risk in CG46) and an ‘at risk’ cohort which now now encompassed anyone admitted to a hospital bed, either as an inpatient or as a day case. The ‘higher’ risk group should be offered prophylaxis against DVT/PE in the form of compression stockings or injectable heparin anticoagulant, but all of the ’at risk’ (including the ‘higher risk’) patients should be given advice before hospital discharge (ideally written, but alternatively verbally) on the possible symptoms of DVT/PE (which included a painful or swollen calf), which if they occurred in the postoperative period should alert the patient to seek immediate hospital attention. Effectively, but not specifically stated, this ‘at risk’ group included anyone having a general anaesthetic, but the words ‘general anaesthetic’ did not appear in the guidance. Furthermore, despite an extensive pre-publication editorial process, there was lack of clarity in the guidance, with the definition of the ‘at risk’ numerator (from within the total hospital inpatient and outpatient denominator) appearing within the guideline after the guidance on prevention.
Mr Spencer attended Hillingdon Hospital in late 2009 with a symptomatic inguinal (groin) hernia and a possible early hernia on the other side. He had no pre-existing history of DVT/PE or any of the medical conditions that predisposed him to increased risk of DVT. He was listed for a laparoscopic (keyhole) repair of both hernias under general anaesthetic. His body mass index (BMI) was 29.8, and such a procedure would normally take 60-90 minutes. CG92 stated that those at higher risk of DVT/PE included BMI >30, those having a general anaesthetic exceeding 90 minutes duration, and those undergoing open abdominal surgery (which is a recognised risk of any laparoscopic surgery because of the risk of damaging internal organs) should be considered at ‘higher risk’ for DVT/PE and as such offered DVT/PE prophylaxis before and during the procedure. Mr Spencer was admitted for his surgery in February 2010, 1 month after the publication of CG92. Although Mr Spencer was on the cusp of the higher risk group on three counts, the hospital failed to perform a preoperative DVT/PE risk assessment prior to admission, but on the day of surgery decided to place compression boots on Mr Spencer’s calves during the general anaesthetic. During the early stages of the laparoscopic procedure, the surgeon encountered bleeding difficulties, so reverted to a traditional open repair of the symptomatic hernia. The anaesthetic lasted 60 minutes, and Mr Spencer went home that evening with a generic non-specific patient information leaflet giving a contact phone number for the day unit, which was open 7 am to 7 pm weekdays, or alternatively to call the hospital switchboard. Mr Spencer did indeed contact the day unit on two occasions in the immediate postoperative period, firstly because of mild post-anaesthetic confusion on the first postoperative day, and again on the third day when he was concerned about wound discomfort. On both occasions he was reassured. However, when he developed a painful swollen calf of the leg on the opposite side to the hernia repair on the 5th postoperative day, not aware of what this could possibly mean, he ascribed it to cramps from being bed bound and thought nothing of it. This symptom appeared to slowly resolve over the subsequent 3 weeks and Mr Spencer returned to work. Mr Spencer collapsed while at work some four weeks after his surgery from a near fatal PE, which although immediately recognised and treated with full therapeutic anticoagulation, suffered a further PE 2 weeks later, and he is now receiving warfarin anticoagulation for life.
Mr Spencer argued that although the risk of developing a DVT in his circumstances was very small (<1%), the material risk to him was such that he would have had the operation, but had he been given the specific advice on the symptoms of DVT/PE, when he suffered the swollen painful calf 5 days after his surgery under general anaesthetic, he would have sought immediate medical attention, which on balance would have led to the correct diagnosis for which he would then have received a 3-6 month course of anticoagulation (initially using intravenous heparin, but subsequently converting to oral warfarin). As a consequence, on balance, he would have avoided the near fatal PE, and more significantly the second PE which now condemned him to lifelong warfarin anticoagulation, with all the lifestyle restrictions thereby ensuing (restricted foreign travel, need for weekly blood clotting measurements, more protracted interventions around all future surgical procedures including dentistry etc.).
The Defendant argued that regardless of the NICE guidance contained in CG92, the material risk of Mr Spencer suffering DVT/PE outside of the ‘higher risk’ group was so small (the Defence argued 1:50,000) that there was no material risk, and therefore no obligation to offer the advice in line with the NICE Guidance, which was supported by the Defendant’s expert opinion, and therefore satisfied the Bolam Test.
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