Duty to warn patients of risks seminar notes

• Some think the decision in Montgomery cannot be applied in practise, although it is in line with the General Medical Council guidance on consent. All the Supreme Court did was give some legal teeth to the guidelines drafted by the medical profession. They may fail to realise that consenting of patients is a moral and ethical issue that true professionals should embrace. 
• Even before Montgomery there was an entrenched tract of authority supporting patient centred tests for risk disclosure. Pearce showed a responsibility of the Dr to inform the patient of significant risk, if the information is needed, so the patient can decide. 
• Claimants before Montgomery were hampered by the Bolam principle. They had the option of Sidaway for material risk but defendants would often argue risk wasnt material. 
• Montgomery set aside the majority view in Sidaway and introduced a patient focused test. Claimant relied heavily on GMC guidance which had not previously been argued. The importance of this guidance is that it is developed by Dr's for Dr's and is identified as a professional duty. 
• Causation in consent cases have been unaffected as the SC wasnt required to consider it. There seems to be no justice in requiring a patient deprived of a right to choose to then have to satisfy the court what he would have done on a hypothetical basis when they are only in that situation from the original failure. 

• Wilsher established there was no exception to the objective standard of care where an inexperienced or newly qualified medical professional was concerned. The applicable standard is due to the post the defendant has. Where the plaintiff was cared for in a specialist unit, the applicable standard of care was a high one. The standard is variable depending on the post held within the team but it would not be varied for the level of experience of the particular member of staff. This was decided in the CoA decision. Mustill- 'in a case such as this, the standard is not just that of the averagely competent and well informed junior house man (or whatever the position of the DR) but of such a person who fills a post in a unit offering a highly specialised service.' In Shakoor v Situ 2000 a practicioner of Chinese traditional medicine was held to the standard of care of an 'orthodox' general practicioner where patient safety was concerned. 
• Bolam test for assessing skill and care- McNair- 'he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... a man is not negligent if he is acting in accordance with such a practice, merely because there is a medical body that would take a contrary view.' Application of Bolam led to criticism of a protectionist stance towards Dr's. This replaced the judges decision with the judgement of the defendants medical expert, as long as they were honest and respectable.

• Been suggested that whenever a tricky decision of standard of care arises, the courts reach for Bolam and resist making their own decisions. 
• Bolitho- a new test to edit Bolam came from Lord Browne Wilkinson- 'it will very seldom be right for a jude to reach the conclusion that the views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgement which a judge would not normally be able to make without expert evidence. It would be wrong to allow such assessment to detriorate into seeking to persuade the judge to prefer one of two views, which are both equally logical. It is only where the judge can be satisfied that the body of expert medical opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendants conduct falls to be assessed.' The difference Bolitho makes to Bolam depends on judicial attitudes to it. There appear to be some signs of greater judicial willing to question the practices of medical professionals eg Chester v Afshar. 

• Under Bolam we saw numbers of claims for medical malpractice rise dramatically and levels of damages rocket, but yet the proportion of successful claims remains low. The increased use of Bolitho and the establishment of the National Insitute of Clinical Excellence and the Law Commission proposals should see courts no longer blindly accepting assertions of good medical practice, but evaluation of the practice. Returning Bolam to its proper limits and appropriate context will be beneficial to medicine and medical litigation. 
• Bolam created a two part test- McNair- 1) the test is the standard of the ordinary skilled man exercising and professing to have that special skill. 2) not guilty of negligence is acting in accordance with a practise accepted as proper by a responsible body of medicine. A Dr is not negligent merely because there is a body of opinion taking a contrary view. This test was made because judges are not qualified to make professional judgements on the practices of other learned professionals. Judges have difficulty dealing with cases of disputed practice when the practice is evolving rapidly in a new speciality and so identifying responsible practice will be demanding, especially where there are exceptionally scientific or technical issues. 
• A series of judgements have given rise to the perception that all Bolam requires is that the defendant finds experts from his speciality prepared to testify they would have done the same. When the paper was written in 2000, of 6 medical negligence cases before the HoL in 16 years 

• the score is defendants 6- plaintiffs 0. Yet in other professional negligence claims, judges have made it clear that expert opinion must be demonstratably responsible and reasonable. In Edward Wong Finance it was found that a practice used by almost all solicitors in Hong Kong was still negligent. In De Freita v O Brien only 5 out of 250 neurosurgeons considered the method safe but no negligence was found. Bolam allowed judgement by colleagues to substitute for judgement by the courts. 
• Bolam became a litmus test in medical ethics. In Sidaway, assessing a Dr's duty to disclose information about risks to the patient, Bolam meant the patient was only entitled to be told what a responsible medical body judged prudent. As backed up in Blyth and Gold failure to give a patient adequate advice was simply an issue relating to breach to be dealt with through Bolam. 
• Bolam was widened further in the case of F (mental patient sterilisation) where treatment of a person who couldnt give consent was justified on the principle of medical necessity. The HoL used Bolam where it decided that a reasonable and responsible body of medical opinion sufficed. Bolam comes into use with the terms clinical judgement and best interest. 
• Bolitho- central issue was causation and not breach. Both sides witnesses represented responsible bodies of professional opinion. 

• The 2 questions on appeal to the HoL were 1) Did the Bolam test have any application in deciding causation? 2) does the Bolam test require a judge to accept without question truthful evidence from eminent experts? 1) yes it did. It prompts the question 'what should have happened? which is the Bolam test. 2) forcefully rejected this. Court is not bound to find for a defendant simply because he leads evidence from a body of experts who believe it was sound. Bolitho must not be oversold as it is only applicable in rare cases. Just returned Bolam to its original limits. 
• In Marriot it was decided the expert opinion advanced in the Dr's favour was not defensible. 
• The government in its paper 'The New NHS' stated its intention to establish national standards and guidelines for services and treatments. National Institute of Clinical Practice has been established to develop guidelines for good pracitce, in reviewing all forms of therapies and procedures. The day of the unfettered autonomy of the individual consultant is over. 
• Lord Browne Wilkinson said the court must be satisfied that expert opinion has 'logical force' and is capable of withstanding 'logical analysis.' There still appears to be a presumption that non doctors will not be able to fully comprehend evidence. Bolitho has set in train a process whereby judges scrutinise medical evidence with the same mixture of common sense and logical analysis they use to do other professional negligence claims. 

• Dillon in Bolitho affirmed that while expert evidence is not immune from judicial scutiny, the burden of proof to justify rejection of evidence is at an almost impossibly high level. Bolitho simply restores Bolam to its proper limits and treats medical negligence like normal professional negligence. 
• Law Commission- courts appear to be prepared to rein in the the worst excesses of the Bolam test. They demand focus is on the patient as an individual and rejects the notion Dr's should be able to hide behind a cloak of professional opinion. Change of emphasis from professional responsibilities to patients rights. 

Order to do things is 1) actionable damage 2) duty of care 3) breach 4) causation. 

1) actionable damage- may be loss of autonomy. Montgomery- didnt get opportunity to choose how her body was dealt with. 

2) duty- to get across broad risks to the patient (Chatterdon v Gerson- consent case but lots of overlap). Montgomery now need to disclose material risks they think an ordinary person would attach importance to, or that the reasonable Dr would know the patient would want to know. Objective and subjective. 

3) breach- apply Bolam and Bolitho. 

4) causation- factual under Chester v Afshar. 

What if we become consumers of medicine? Might not disclose risks if the Dr wants to sell a product or surgery to you. Or may have 500 pages of terms and conditions before agreeing. Similar relationship to buying education.