HEAL Capacity & Consent

2018 Essay

Montgomery v. Lanarkshire Health Board’s [2015] UKSC 11’s patient-focused approach to consent goes too far. Doctors will not be able to present enough information to patients sufficient to comply with its mandate, thus exposing them too much to liability. Critically evaluate this statement.

Argument: The reality is that Montgomery will make little differnce to healthcare consent and practise, which for 10 years has principally focussed on a reasonable patient test' (AM Farell 'Not so New Directions in the Law of Consent) 

• Negligence claims normally arise from failure to infrom PT's about 'material risks' which later develop 
• Historically the court have been reluctant to allow negligence claims to succeed due to lack of informaiton - E.G Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, wherein the DR didnt give PT any muscle-relaxant drugs prior to electro-convulsive therapy causing PT to suffer a serious fracture. Court found DR wasnt in breach of duty by not giving claimant the drugs. Bolam Test: 'a man is not guilty if he has acted in accordance with a practise accpeted as proper by a responsible medical body, even if there is a body of opinion that would take a contrary view'. 
• The 'Bolam Test' was upheld in Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871, wherein The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam Test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed

• Following on from Bolam, a more PT Friendly approach has been opted for by the Courts regarding when a PT should be informed of material risks or 'informed consent'.
• For example, in Pearce v United Bristol Healthcare NHS Trust (1998) 5 WLUK 361 - wherin a negligance claim was raised regarding the stillbirth of the cliamants daughter, resulting from non intervention by the DR to induce labour 14days beyond term. Although dismissing the appeal, due to the risk of stillbirth in this siutation being s defendible 0.1-0.2%,
• Lord Woolf MR highlights the reasonable patient test. And distances himself from the prior Bolam test. Putting the new test as 'a DR would be liable in negligence if he failed to alret the PT to the significant rosks which would affect the judgement of the PT'
• And also states a new suty to consider the 'undertsanding and emotional condition of the patient' = 

 PARAPHRASED = 'The DR when determining what to tell a PT, has to consider all relevant considerations. Including the ability of the PT to comprehend what they have to say to them and thier state at the paticular time. Both physically and emotionally'.

Cont. on from Pearce, Chester v Afshar (2004) UKHL 41 established a limiteed scope for a causation principle for consent. Meaning it can be more PT friendly. 

• Chester represented a departure from traditional causation principles. In this case, Ms. Chester consented to spinal surgery, which had a 1-2% risk of worsening her condition, which she was not made aware of. Dr. Afshar argued, in accordance with a responsible body of medical opinion, that it was not mandatory to advise Ms. Chester of this risk. In the event, the risk materialised and Ms. Chester suffered cauda equina cord compression.
• The House of Lords held that Ms. Chester should have been warned of the risk. Ms. Chester did concede that she would have still had the surgery but would have taken time to consider it. Therefore, the surgery would have taken place on a different date and perhaps with a different surgeon, but the chances of the complication would have remained the same.
• Part of the legal test applied was: The injury was intimately involved with the duty to warn…. It was the product of the very risk that she should have been warned about when she gave her consent.

Claims 

• It was alleged that her obstetrician had been negligent in failing to disclose the risk of shoulder dystocia through vaginal delivery and in offering her the alternative of a C section
• And that a C-section should have been performed in any case following abnormalities indicated by cardiotocograph (CTG) traces during the course of labour 

Why? 

• Mrs Montgomery stated that if she had been informed by her obstetrician of the risk of shoulder dystocia, and the possible problems associated with vaginal delivery, she would have opted for an elective C-section (para 18). [1]
• While her obstetrician accepted that the risk of shoulder dystocia was high, she stated it was not her practice to discuss this type of risk with her patients.
• However, she did concede that if she had advised Mrs Montgomery of the risk, then ‘she would no doubt have requested a caesarean section, as would any diabetic today’ (para 19). [1] 

The Scottish Court 

• Claim didn’t succeed in Scottish Courts as disclosure of the risk to Mrs M as wasn’t a significant risk of grave consequences to the baby even though risk of dystocia overall.
• Held that the obstetrician’s duty did not extend to disclosing the risk of shoulder dystocia in the absence of Mrs Montgomery asking specific questions about the risks of vaginal delivery.
• An expression of general concern on her part about vaginal delivery was not enough (paras 29, 33). – Scottish courts applied the Bolam test and DR found in accordance with accepted med practice.
• They considered they were bound by Sidaway and did not accept that later decisions, such as that by Lord Woolf in the case of Pearce, had replaced the reasonable doctor test with the reasonable patient test (paras 3, 26-31). 

The Supreme Court Appeal

• Unanimously held that Mrs M should have been warned by her obstetrician of the risk of shoulder dystocia and offered the alternative of a C-section. 

Judgment - Lord Kerr, Lord Reed, Lady Hale -    

• The doctor’s duty was described by the Court as taking ‘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’ (para 87).
• Further, the doctor was responsible for explaining to her patient why one treatment option may be medically preferable to others, having made the patient aware of the relative advantages and disadvantages of each option.
• Court also found that the Scottish courts had erred in focusing on the risk of injury to the baby, which was relatively small

The Test for Material Risk 

• 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 be reasonably aware that the particular patient would be likely to attach significance to it (para 87). 

Significance of Judgement 

• Gets Rid of Bolam - 'The patient’s entitlement to decide on the risks to her health that she is willing to run (a decision which may be influenced by non-medical considerations)’ must not be ignored, and Bolam has no role to play in determining what patients should be told' (paras 83, 84). 

Critiques

AM Farell, 'Not So New Directions in the Law of Consent' 

• Patient Freindly - Identifying the doctor’s duty to disclose a material risk, the Court stated that the starting point should be the ‘needs, concerns and circumstances of the individual patient’ (para 73
• The Court signalled a shift from a ‘doctors know best’ approach – the hallmark of Sidaway – to what has been referred to as the ‘particular patient’ approach
• The SC endorsed the view that most consent lawyers and DR's thought have already prevailed, and largely reflects UK General Medical Council (GMC) guidance. 
• Little casue for doctors to panic about the 'litigation floodgates' that have now opened in relation to consent and non-disclosure claims 

J Montgomery, 'Montgomery on Informed Consent: an Inexpert Decision'? 

• 'A Triamph for PT autonomy over medical paternalsim'
• 'Infantalising the PT and demonising the DR'
• 'The SC displayed a poor grasp' of clinical issues. 'Reductionist approach'

AM. Farell 

• Better training of DR's needed as opposed to controversies lying within the law? 
• DR's found to have 'routinley unerestimated' small risks that have importance to teir PT's 
• Issues lie in relationship between PT and DR, not the law itself which just reflects the particlaity of PT's thoughts 
• Further autonomy for the PT when choosing not to receive information or to ‘delegate’ her right to choose to her doctor (para 85)
• However: Lady Hale’s observation that respecting patient autonomy does not mean that a doctor can be forced ‘to offer treatment which he or she considers to be futile or inappropriate’ (para 115). Lady Hale delivered a separate judgment, which focused on patient autonomy in pregnancy and childbirth.

Chrispopher Stone 'The Decision in Birch Marks Another Step Away from the Much Criticsed Sidaway Approach to Consent' (2010) 

• 'Law has moved away from medical paternalism, and a 'DR knows best approach to consent', towards a PT centered process that gives greater effect to the porimacy of a PT's right to self-determination'.