There is no room for a legal test which allows the medical profession to justify a restrictive approach to disclosure of risk, says John-Paul Swoboda

Source: Solicitors Journal, 2015

28 April 2015

On 11 March 2015
the Supreme Court handed down its judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11, which considered how the courts should determine whether a medical professional had fulfilled their duty to provide disclosure of the risks of a medical procedure to a patient (i.e. informed consent).

Heightened risk

Nadine Montgomery (a diabetic) had, as shown on ultrasound scans, a large baby in utero. This heightened the risk of shoulder dystocia(the shoulders becoming stuck in the birth canal) during birth by 9 per cent to 10 per cent, which was a cause for concern in relation to the mother’s health. If shoulder dystocia occurred then there was also a chance of serious injury to the baby, including brachial plexus or cerebral palsy, the probability of which was smaller (0.1 per cent to 0.2 per cent).

Montgomery’s obstetrician,
Dr McCellan, took the view that if diabetic pregnant women were warned of the possibility of shoulder dystocia, they would ‘invariably choose… delivery by caesarean section’, which she judged not to be in the women’s best interests, albeit that the health risks of caesarean section are minuscule in comparison.

Montgomery was not informed of the risk of shoulder dystocia, which occurred. Her baby was born with cerebral palsy and a brachial plexus injury. The Supreme Court decided Nadine Montgomery should have been told of the risks of shoulderdystocia.

Before Montgomery, practitioners faced a number of overlapping decisions which appeared not entirely coherent. In Sidaway v Boards of Governors of the BethlemRoyal Hospital and the Maudsley Hospital [1985] AC 871, the Bolam test (whether a body of competent doctors would support the decision not to disclose the risk to the patient) survived by a bare majority.

In Montgomery, the Supreme Court, in a unanimous decision, overturned Sidaway, and judged that the doctor’s duty
is to ‘take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any 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.’

All trace of the Bolam test is now vanquished from informed consent. The Montgomery test requires the doctor to take reasonable care to ensure the patient is aware of ‘material risks’. Material risks are identified:

  • Not by reference to whether a group of doctors believe a risk should or should not be discussed;
  • By whether a reasonable person in the patient’s position would consider the risk significant; or
  • If the doctor knows (or should know) that the patient would consider the risk significant.

Wresting control

The Supreme Court, endorsing the decision of the Court of Appeal in Pearce, has wrested control from doctors of whether risks of treatment should be disclosed and returned such control to judges. Whether risks should be disclosed to a patient is, according to the Supreme Court, a legal question to be determined by a judge, taking into account the circumstances of the patient.

At the heart of the decision to give judges control over which risks should be disclosed is the proposition that a patient is a person with rights who should be provided with sufficient information to make an informed choice. The old paternalistic view that patients are simply passive recipients of care incapable of understanding and making decisions in relation to their medical care is gone.

There is, therefore, no room for a legal test which allows the medical profession to justify
a restrictive approach to disclosure of risk. It is this change in philosophy which sounds the death knell for Bolam in cases of informed consent.

The move to a rights-based approach protects the patients’ right to make life-changing decisions on the basis of all significant information, and it is surely right that it is not for the medical profession to decide whether a particular risk should be disclosed as it is not a matter which requires the application of clinical judgement.