A new ruling seems to place an onus on the medical profession to enter into a dialogue with their patients regarding their care, writes Fred Tyler
The decision from seven justices of the Supreme Court in the case of Montgomery v Lanarkshire Health Board issued on 11 March of this year has, one way or another, shaken up the medical profession across the UK but it also needs to shake up the legal profession. The court had been asked to reconsider the law in relation to a doctor’s duty to a patient in relation to advice about treatment.
For many years the legal test in consent cases had been the same as the test in relation to diagnosis and treatment, namely whether or not the doctor had acted in accordance with practice accepted as proper by a responsible body of medical opinion (the Hunter v Hanley test). That had been the law since the case of Sidaway v Board of Governors for Bethlem Hospital & Others decided in 1985. The obvious problem with such an approach is that this permits doctors to determine what risks patients are told of.
The Supreme Court overturned Sidaway and recognised that, in the area of consent, the patient has an active role to play in decisions about their medical care. It is no longer for the doctor to decide, without discussion with the patient, what treatment should be given. The doctor must enter into a dialogue with the patient, discuss the options for treatment and the risks and benefits of the alternative treatments to enable the patient to make an informed choice. The test is what information a reasonable patient in the patient’s position would want to know.
What risks are material? If the risk is likely to be material to the patient, the patient must be advised, no matter how small it may be in percentage terms. Where risks have been discussed, a doctor requires to make detailed and contemporaneous entries in the patient’s notes of the advice that was given.
The Supreme Court recognised that there would be those who would not be happy with their decision and indeed, many doctors and medical writers have expressed horror and have suggested this change cannot work in practice. It will affect the ability of doctors, it is said, to render effective patient care. But this legal change simply formalises into law what has been in the Guidance of the General Medical Council, which regulates the medical profession, since at least 1995. Many jurisdictions have already adopted a patient-focused test, and their medical professionals have had no difficulty operating it in practice.
Doctors will still have the protection of being able to decide on treatment without detailed discussion with the patient in emergency situations, or where there would be a risk to the patient’s health by spelling out the risks (so-called therapeutic privilege). The new test does not compel doctors to undertake procedures they do not agree with and patients can also decline information about risks if he or she so wishes.
How has this changed the medical landscape in practice? Health boards will require to review the standard consent forms for operations. A list of generally recognised complications will no longer be sufficient. The consent information will require to reflect the needs of the individual patient. The preference is that the doctor performing a procedure consents the patient and delegation of the duty to junior members of staff has been frowned on for many years.
And what of the legal landscape? Lawyers who, for years, have applied the old test of clinical negligence, will not only require to approach new cases in a new way as dictated by Montgomery, they will also require to revisit current cases to see if there is a consent case that should be added. That is not to say, as claimed by Lanarkshire Health Board after publication of the decision, that Montgomery is retrospective in effect because, quite clearly, it is not. It is highly unlikely that cases which have already passed the timebar without raising a consent case will be able to do so now. But in current cases within the timebar, it will be essential to examine whether there is a consent case that ought now to be brought.
And for would-be clients? Despite arguments made to the Supreme Court, the obligation is still on the patient to prove information was not given to enable them to make an informed decision. If all this had been given to the patient before the treatment was delivered, would it, on the balance of probabilities, have affected the patient’s decision? Would the patient have refused the treatment offered or paused for thought? This is still likely to be a significant hurdle for many patients.
• Fred Tyler is senior partner and litigation specialist at Balfour+Manson www.balfour-manson.co.uk