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Stewarts Solicitors

Medical Negligence Updater

Medical Negligence Development – Changes to the duties owed by doctor’s towards patients in relation to the advice offered about their treatment.

The recent case of Montgomery (Appellant) v Lanarkshire Heath Board (Respondent) [2015] UKSC 11 has been put forward by many legal commentators as a landmark decision in the area of informed consent.

The Appellant, Nadine Montgomery suffered from insulin dependant diabetes mellitus. She gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire, Scotland. As a result of complications encountered during delivery her son was born with severe disabilities. She sought damages against Lanarkshire Health Board on behalf of her son for the injuries which he sustained.

The doctor in charge of her pregnancy and labour failed to provide Ms Montgomery with advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) which would be involved in vaginal birth, of the alternative possibility of delivery by elective caesarean section to avoid such consequences, or that her baby may suffer serious harm as a result of a normal vaginal delivery, especially in light of her circumstances.  This failure was particularly pronounced in this case as there is a 9-10% risk of shoulder dystocia in relation to woman who are diabetic. Ms Montgomery’s pregnancy was therefore regarded as high risk and one which required intensive monitoring.

Ms Montgomery advised in evidence that if she had been told of the risk of shoulder dystocia she would have requested further information on the condition, including the possible risks and if she considered these risks to be significant, she would have asked her doctor to perform a caesarean section.  Her treating doctor advised that her practice was not to routinely warn pregnant mothers who happen to be diabetic of the risks of shoulder dystocia. Her reasoning for this was that if she did, every diabetic would elect for a caesarean section and “it is not in the maternal interest for woman to have caesarean sections.”

The Supreme Court held that a doctor has 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 Court held that a risk could be classified as “material” by determining whether, in light of the facts of each individual case, “a reasonable person in the patient’s position would be likely to attach significance to it” or “ the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

This judgement in essence now creates a legal obligation upon doctors to ensure that patients are  told of all material risks associated with a particular surgery or treatment plan before making a decision. Thus their right to make an informed decision regarding their own well-being, in accordance with advice provided by their treating doctor, is strengthened and protected. This ruling affirms the guidance provided to doctor’s by the General Medical Council regarding informed consent and provides clarity in this area. Medical Practitioners are now aware that by law they must advise their patients of any material risks associated with their treatment and any reasonable alternatives.

The only exceptions to this legal obligation extend to the following situations;

  • where the patient has advised his or her doctor that they would prefer not to be made aware of the risks;
  • where the doctor’s clinical opinion is that telling the patient of a material risk would cause serious harm to the patient’s health ;
  • where no consent can be obtained due to the circumstances of necessity, for example when a patient is in need of urgent treatment, is unconscious, or lacks the relevant mental capacity.

Where these exceptions do not come into play then a doctor must ensure that their patient “understands the seriousness of his/her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that the patient is then in a position to make an informed decision as to how they wish to proceed.”

The immediate ramifications of this judgement from a practical perspective are as of yet uncertain. One interpretation may be that increased litigation will result from this increased emphasis placed on doctor’s ensuring that patients are advised of all material risks. Should for example, a patient sustain injury through making a certain decision or availing of a certain procedure when they were not fully advised of the material risks associated with that treatment or course of action or of the alternative options available which may have circumvented the risks associated with the former, then it would seem that increased litigation may certainly follow suit.

On the other hand by making patients aware at the outset of the risks associated with any clinical decision that they have to make and therefore providing them with more responsibility for their own individual treatment (encapsulating their right of self-autonomy) the it would seem hat less litigation would arise.

What can be construed as definite is that this ruling brings the law regarding informed consent up to date with modern practices and redefines the concept of a contemporary “doctor-patient relationship.” As Lady Hale commented:

“It is now well recognised that the interest which the law of negligence protects is a person’s interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body.”

Barry Finnegan, Trainee Solicitor, Stewart’s Solicitors, 3-4 Donegal Quay, Belfast, BT1 3EA. 30th March 2015

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