What information must be disclosed to a patient before they consent to surgery?

Student lawyer Sophie Timms discusses the case of: Montgomery v Lanarkshire Health Board [2015] UKSC 11 and asks “what information must be disclosed to a patient before they consent to surgery?”

Facts:

The claimant, Mrs Montgomery, brought a medical negligence claim due to the injuries her son sustained during childbirth, which resulted in him suffering from cerebral palsy. Mrs Montgomery was a first-time mother, diabetic and small in stature. Diabetic expectant mothers carry an increased risk of a carrying a larger baby than non-diabetic mothers, and Mrs Montgomery had expressed concern at several of her clinic visits about the larger size of her baby and the possibility of vaginal delivery. The treating doctor had failed to warn Mrs Montgomery that due to her diabetic condition and the larger foetus, she carried a 9-10% risk of shoulder dystocia during delivery, which could have the implications of cerebral palsy and other health conditions if it happened. The doctor also failed to disclose the optional alternative of a caesarean section (C-section). Unfortunately, dystocia occurred, and Mrs Montgomery’s son was born with cerebral palsy. Mrs Montgomery claimed that, had she been warned of the risk of shoulder dystocia, she would have opted for a C-section and her son would not have suffered from cerebral palsy.

Issues for the court:

The issues for the court to decide were whether the doctor had negligently failed to disclose the risks of shoulder dystocia associated with a natural delivery, and whether the doctor should have informed Mrs Montgomery of the option of having a C-section – particularly due to the concern that she had expressed about the large size of her unborn baby prior to the birth.

The previous legal test for cases of this nature was the Bolam test, which was founded on the concept that a doctor knows best. If a doctor is in accordance with what any ‘reasonable body of medical opinion’ would do in the circumstances, their conduct will not be found negligent. The court therefore had to decide if the Bolam test still applied.

The decision of the Supreme Court:

This case was first heard in the Inner House of the Scottish Courts; however, it reached the Supreme Court on appeal.

In its judgment the Supreme Court decided that the Bolam standard was no longer the correct approach to take in cases such as Montgomery, as it no longer reflected current society. It was decided that medical knowledge is essential for many aspects of a doctor’s job, however the extent of communication that a doctor must make with a patient does not require medical knowledge and should therefore be determined by the courts instead.

The Supreme Court also looked at the doctor’s reasoning for not disclosing the risk of shoulder dystocia and the option for a C-section. The treating doctor had the personal belief that all babies should be delivered naturally, and this prevented her from discussing the risks and alternative procedures with Mrs Montgomery. This highlighted a concern to the judges, as it negligently deprived Mrs Montgomery of her right to make an informed choice. With a modernising society has also come the focus on a patient’s right to self-determination and choice in their healthcare, commonly termed ‘patient autonomy’. In order to protect this right, the Supreme Court effectively reversed the previous legal test of Bolam, so that the focus started with the patient’s right to autonomy, rather than the doctor’s duty to provide information. In doing so, they discarded the Bolam test from consideration in cases of informed consent and provided a new test that focused on the rights of the patient.

The new test:

The test for decisions such as this therefore changed from the view that a ‘doctor knows best’, to the view that the patient has the right to personal autonomy and to make decisions about their own healthcare. The new test introduced by the Supreme Court looks at whether a ‘reasonable person in the patient’s position would be likely to attach significance to the risk, or whether a doctor should be reasonably aware that the particular patient would be likely to attach significance to it’.

As Mrs Montgomery had expressed concern about the size of her unborn baby, it indicated that she would have attached significance to the risk of shoulder dystocia and cerebral palsy, even if the doctor had not considered it to be a risk worth mentioning. She might subsequently have opted for a C-section, rather than vaginal delivery, to avoid this risk.

Mrs Montgomery was awarded £5.25 million in damages by the court due to the doctor’s negligence.

Implications:

The introduction of this new test has altered the perspective that the courts take in cases involving a patient’s informed consent. Instead of the courts agreeing that a doctor knows what is best for a patient, there is now a requirement for doctors to understand their patients’ concerns and take them into account when recommending treatment. This is important as it emphasises that healthcare is modernising to allow individuals to have a greater involvement in their care, and an increased trust in the healthcare system that their concerns are being listened to, as by law, they must be.

The outcome of this case is therefore beneficial to all individuals, as it provides more protection of their choices and concerns in healthcare decisions and allows them to have more involvement in their care. The fear of not understanding what a procedure involves is reduced because of this new test, which can be considered as a welcome improvement for patients.