Introduction created, as well as whether this

Introduction

 

A traditional legal perspective held
that the doctor should maintain complete control of a patient’s treatment. This
approach was known as the doctor knows best approach. However, this perspective
has lost favour with the medical community, as medical knowledge has improved
and has become more readily available to those outside the profession there has
been a greater demand for patient autonomy. Montgomery
v Lanarkshire Health Board1
is widely recognised as a landmark case for the manner in which it demonstrates
a recognition of a shift in the Court’s perspective on duty of care in the
context of disclosure by Doctors. ‘Substantively changing how this duty is assessed
and placing control into the hands of the patient’2.  This essay seeks to establish the legal change
Montgomery has created, as well as
whether this change is wholly unexpected by medical law scholars and how this
will impact the practice of medicine in the future.

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Montgomery: The Judgment.

 

In the case of Montgomery v Lanarkshire Health Board,
Nadine Montgomery bought forward a claim on behalf of her son who as a result
of oxygen deprivation had been born with cerebral palsy. ‘It was held that Mrs Montgomery’s consultant
obstetrician and gynaecologist, Dr Dina McLellan, was negligent in failing to
disclose the risk of shoulder dystocia that may have arisen from natural
delivery, and failing to discuss, as a direct result of these risks, the
alternative possibility of delivering the baby by caesarean section.’3
The claim having failed in the Scottish Courts, found its way to the Supreme
Court where focus was placed upon McLellan’s failure to disclose a 9-10% risk
of shoulder dystocia. This risk, the courts considered to be significant,
subsequently it was ruled that the Defendant had been in breach of her duty to
disclose this information to her patient.

 

Legal Change

 

Prior to the ruling in Montgomery the Courts adopted a
practitioner-orientated approach, assessing the duty to disclose information in
accordance with the Bolam Test. Sidaway v
Governors of the Bethlem Royal Hospital4
was the leading case when assessing a doctor’s duty to disclose information to
their patient. The ruling extended the Bolam Standard ‘beyond clinical
diagnosis and treatment to the extent to which doctors should inform patients
of the risk of a proposed treatment.’5 This
ruling became a symbol for the paternalistic ‘Doctor knows best’ approach that
was prevalent throughout earlier medical law, proposing that ‘the
reasonableness of the care fell to be determined by the standards set by the
profession’6; Essentially
this case identified the medical profession to be a self-regulating entity,
implementing its own duty of care in accordance with the opinion of its own
professionals.

Concerns arose from this with
critics arguing that ‘the “old” medical law placed doctors at the heart of the
proceedings at the expense of the patient’7.

These concerns were recognised in the confusing judgements of Sidaway
throughout Lord Scarman’s dissenting judgement that placed emphasis on
self-determination being a human right.8

 

In 2015 seven Judges in the
Supreme Court considered the case of Montgomery and unanimously overruled the
majority in Sidaway, imposing a duty upon healthcare professionals to disclose material
facts to their patient. This ruling changed the legal definition of the role of
a doctor, moving it towards an advisory position with a fundamental requirement to include the patient in the decision-making
process.9
This ruling demonstrated that the legal assessment of disclosure should not be
determined by the professional opinion of a doctor’s peers and instead in
accordance with a subjective test that holds the patient at the heart of the
decision.

 

Was this change unexpected?

 

In order to establish the significance of Montgomery it should be understood that whilst the ruling
revolutionised how the law assesses a Doctor’s duty to disclose information it
was not completely unexpected. ‘In many regards the decision has simply
confirmed the direction of travel which was already evident in decisions of the
lower courts’10.  Through cases such as Pearce v United Bristol Healthcare NHS Trust11
and Chester v Afshar12
the Courts had already pushed patient autonomy to the forefront of debate.

 

In the case of Pearce, a mother lost her child in utero, after her obstetrician made a medical decision regarding
how she should give birth. The question facing the courts in this case was
whether the patient should have been informed of the risks associated with this
decision? In the judgement Lord Woolf MR said it seemed to him that ‘if there
is a significant risk which would affect the judgement of a reasonable person,
then in the normal course it is the responsibility of the doctor to inform the
patient of that significant risk.’13 Here
we see the Courts introducing the notion of material risk, indicated by Lord
Woolf’s use of the word ‘significant’ where Sidaway’s judgement first stated ‘Substantial’.

 

Recognition of the importance of disclosure to patients is further
exemplified by the case of Chester v
Afshar where despite causation being the primary concern of the case, it
does contain ‘relevant observations in relation to the to the duty of a doctor
to advise a patient of risks involved in proposed treatment.’14

 

Change in Professional Standards of Health Care?

 

A number of healthcare
professionals have expressed concern that the ruling in Montgomery

Will have an impact on the workloads
of doctors who will feel inclined to disclose maximum information to the
patient and therefore increase the costs of running the NHS. There are also
concerns the ruling of Montgomery will result in an increase of litigation. Guidance
on how to prevent this repercussion is evident in the RCS guidelines which
provide ‘practical advice on how
surgeons can optimise their time available with patients.’15 

 

However, it has been argued that endorsement
of a patient-centred approach has been evident in medical practice long before
it was represented in Montgomery. This is demonstrated by the General Medical
Council (GMC) whom ‘mandated an approach rooted in patient autonomy long before
it was reflected in the law’16.

When looking to the GMC’s guidance, evidence of emphasis on autonomy can be
dated as far back as 1998 where it was suggested medical professionals ‘must
respect patients’ autonomy’ furthermore stating ‘patients must be given
sufficient information’17.

Whilst this guidance is not legally binding it is looked upon with particular
importance, as it is a legal offence to practice as part of the National Health
Service without being registered with the GMC or to falsely state you are a
registered with the GMC when you are not.18
The prevalence of patient autonomy within such important material is crucial in
recognising the importance of Shared-Decision making in medical practice.

 

Montgomery can be considered significant in the nature that it has
transformed the ethical duty to disclose information into a legal duty. Whilst there
are concerns that the precedent of this case will cultivate a fear of
litigation within the medical profession, and practitioners will increasingly
adopt a defensive practice; it can be suggested that because the ethos of a
patient-centred approach has been engrained in medical practice already, little
change will actually be required to take place.

 

Furthermore, an argument can be
proposed that shared decision making, allows clinicians to discharge the liability
to the patient. By the patient taking control over their own healthcare and
becoming self-determining, they are less likely to place blame upon the doctor
when this chosen path has not resulted in the way they had hoped.

 

Have Doctors lost their ability to make decisions?

 

On a practical level, a demand for patient autonomy is not completely
unexpected. With technological advancements ‘it has become easier and far more
common, for members of the of the public to obtain information about symptoms,
investigations, treatment options, risks and side-effects via such media as the
internet’19.

As a result, patients should be considered to be informed consumers.

 

However, five years of
university, followed by extensive practical training, prepares a Doctor to make
medical decisions more competently than the average person. More succinctly the
doctor has been trained to know best. However, there are concerns that the
ruling in Montgomery disregard the expertise of qualified clinicians suggesting
patients are able to comprehend medical information that Doctors have taken
years to properly understand. On the other hand, it can be said that the
concept of Shared decision making is to not only provide patients with a sense
of control but allows them to provide informed consent. Doctor’s still have
right to recommend specific procedures, and enact therapeutic privilege where
they see fit. Therapeutic privilege dictates that a doctor can refuse to
disclose information if they believe doing so would be detrimental to their
patient. 

 

However, concerns are that the
courts have failed to recognise that doctors must not just consider the needs
of individual patients, but also consider certain procedures are of greater social
utility. Patients are not accountable to anyone, and therefore may favour
procedures that may seem expensive and frivolous, and when informed that such
procedures are not reasonable they may become upset and frustrated. It can be
argued that the law is not unreasonable, and recognises the pressures doctors
face, the duty to disclose refers to viable alternatives. The precedent laid
out in Montgomery seeks to endorse shared-decision making and informed consent,
it does not look to undermine doctors nor disregard their responsibilities to
Society on a whole.

 

Conclusion:

 

The ruling in Montgomery can be considered significant
in the way it has shifted the ethical duty to disclose information to a patient
into a legal duty. Furthermore, it provides much needed clarification on the
Court’s perspective on patient’s autonomy. However, it can be suggested that if
you were to dispense of this clarity then the ruling itself is of far less
significance, medical practice has endorsed a patient-orientated approach prior
to this case and so the ruling manifests no significant change to the practice
of medicine. Moreover, the lower courts have expressed the importance of
patient autonomy before Montgomery. There are concerns that when dispensing of
the paternalistic Doctor knows best approach, the Courts have disregarded the
extensive training Doctors have undergone to understand medicine. Furthermore,
it can be said little regard is paid to the manner in which clinicians must
balance the needs of the patient and the needs of society. However, ultimately
this concern is undermined by the therapeutic privilege which recognises that
the Doctor should have primary control of clinical decisions and gives Doctors
ability to refuse disclosure where it may be detrimental to the well-being of
the patient.

 

In conclusion Montgomery does not seek to
undermine the Doctor but instead demands a need for patients to be able to
provide informed consent, an ethos that has been prevalent in medical ethics
for years, the law simply took longer

1 Montgomery
v Lanarkshire Health Board 2015 UKSC 11, 2015 AC 1430

2
Michael Lamb, Montgomery: A symbolic or substantive change to the Law? North
East Law Review, Volume 5 2017, 25-28

3 Hobson
Clark, No (,) More Bolam Please: Montgomery v Lanarkshire Health Board, Modern Law
Review Vol.79(3) 2016, 488-503

4 Sidaway
v Board of Governors of the Bethlem Royal Hospital and others 1985 AC 871

5 Judy
M Laing, Delivering informed consent post-Montgomery: Implications for medical
practice and professionalism, Journal of Professional Negligence, 130

6 Rob
Heywood, José Miola, The Changing face of pre-operative medical
disclosure: placing the patient at the heart of the matter, Law Quarterly
Review 2017

7
Heywood, p3

8 Rob
Heywood, R.I.P Sidaway: Patient-orientated disclosure—A standard worth waiting
for?: Montgomery v Lanarkshire Health Board 2015 UKSC 11, Medical Law Review,
p463

9 Judy
M Laing, p134

10 ibid

11 Pearce
v United Bristol Healthcare NHS Trust 1998 ECC 167

12 Chester
v Afshar 2004 UKHL 41; 2005 1 AC 134

13 Pearce
v United Bristol Healthcare NHS Trust 1998 per Lord Woolf MR at 21

14 Horsey
& Rackley, Kidner’s Casebook on Torts, 14th Edition, p162

15 Judy
M Laing, p140

16 Michael
Lamb, p27

17 General Medical Council, ‘Seeking Patients’
Consent: The Ethical Considerations’ (1998) paragraph 1

18
Medical Act 1983, s 49

19 Horsey
& Rackley p163

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