Abstract:The 2015 UK Supreme Court judgment in
Montgomery v Lanarkshire
reinforces the importance of informed consent to medical treatment. This paper suggests that
Montgomery
recognises the challenge faced by vulnerable individuals in choosing between treatment options and making decisions with appreciation of information about material risks. The judgment endorses a form of weak paternalism to safeguard such persons, which is not disrespectful of the aggregate principles … Show more
“…A dominant claim in the literature on Montgomery is that it transformed the law of informed consent 3‐26 . For example, one paper suggests that ‘the Montgomery decision redefined the standard for informed consent and disclosure’ 7 .…”
Section: Resultsmentioning
confidence: 99%
“…Other papers interrogate the ambiguity surrounding the concept of autonomy, including how the Supreme Court used the concept in Montgomery 5,6,9,23,42 . For example, Heywood highlights the Court's use of "autonomy" in Montgomery c"ompared to its use of "self‐determination" in Sidaway :The variance in language may only be subtle, and it could be argued on one level that self‐determination and autonomy mean the same thing, but the term autonomy somehow seems to evoke more powerful connotations of a rights‐based approach from judges 42 …”
Section: Resultsmentioning
confidence: 99%
“…7 Other papers interrogate the ambiguity surrounding the concept of autonomy, including how the Supreme Court used the concept in Montgomery. 5,6,9,23,42 For example, Heywood highlights the Court's use of "autonomy" in Montgomery c"ompared to its use of "self-determination" in Sidaway:…”
Section: Patient-centred Care and Autonomymentioning
confidence: 99%
“…Even if litigation for negligent disclosure has not increased, many suggest that outcomes have become less predictable post-Montgomery. 5,32,36,42,47,60,64,77,100 This unpredictability is commonly attributed to uncertainty concerning how courts will assess material risks, 9,11,19,21,23,32,33,45,46,60,75,77,86,88,89,91,103 apply the subjective patient limb of the test, 9,18,22,23,31,36,41,42,48,60,81,86,90,92 allow the therapeutic exception, 5,6,22,25,31,33,34,37,[58][59]…”
Section: Litigation Outcomes Less Predictablementioning
Rationale, Aims and Objectives
Six years ago, the Supreme Court judgement in Montgomery v Lanarkshire changed medical law. It introduced a new patient‐based standard of care for the communication of treatment risks and alternatives, rejecting the doctor‐based standard that had long governed all aspects of medical negligence. This is the first systematic review to analyse the literature on Montgomery. Our aim is to appraise and synthesize the literature on Montgomery's impact on medicine and the law and to identify areas for further academic enquiry and implications for professional guidance and training.
Methods
Searches were run in Medline, Embase, PsycINFO, Web of Science, Scopus, Westlaw UK, HeinOnline, and LexisNexis. Two reviewers screened papers. Extracted data was analysed and discussed by an interdisciplinary team. PRISMA guidelines were followed.
Results
Of the 1134 papers identified, 100 met the inclusion criteria. These papers revealed significant disagreement on four core sets of issues, focusing on Montgomery's impact on: (1) legal and professional duties; (2) medical practice; (3) the patient experience; and (4) litigation. The first set addresses whether the case actually changed doctors' legal and professional duties, the relationship between GMC guidance and medical law, and the boundaries of Montgomery. The second explores whether the decision has incentivized defensive medicine, its resource implications, and doctors' knowledge of it. The third concerns whether and how the decision has promoted patient autonomy and involvement in their own care. The fourth focuses on whether the case has caused an increase in litigation.
Conclusions
Despite the abundance of legal and medical literature on Montgomery, many issues remain unresolved. Empirical research is required for many of the questions. Doctrinal analysis informed by medical knowledge is also required to assess whether Montgomery may have unrecognized ramifications—for example, whether it will require the disclosure of risks associated with diagnostic uncertainty, where doctors advise patients without performing procedures.
“…A dominant claim in the literature on Montgomery is that it transformed the law of informed consent 3‐26 . For example, one paper suggests that ‘the Montgomery decision redefined the standard for informed consent and disclosure’ 7 .…”
Section: Resultsmentioning
confidence: 99%
“…Other papers interrogate the ambiguity surrounding the concept of autonomy, including how the Supreme Court used the concept in Montgomery 5,6,9,23,42 . For example, Heywood highlights the Court's use of "autonomy" in Montgomery c"ompared to its use of "self‐determination" in Sidaway :The variance in language may only be subtle, and it could be argued on one level that self‐determination and autonomy mean the same thing, but the term autonomy somehow seems to evoke more powerful connotations of a rights‐based approach from judges 42 …”
Section: Resultsmentioning
confidence: 99%
“…7 Other papers interrogate the ambiguity surrounding the concept of autonomy, including how the Supreme Court used the concept in Montgomery. 5,6,9,23,42 For example, Heywood highlights the Court's use of "autonomy" in Montgomery c"ompared to its use of "self-determination" in Sidaway:…”
Section: Patient-centred Care and Autonomymentioning
confidence: 99%
“…Even if litigation for negligent disclosure has not increased, many suggest that outcomes have become less predictable post-Montgomery. 5,32,36,42,47,60,64,77,100 This unpredictability is commonly attributed to uncertainty concerning how courts will assess material risks, 9,11,19,21,23,32,33,45,46,60,75,77,86,88,89,91,103 apply the subjective patient limb of the test, 9,18,22,23,31,36,41,42,48,60,81,86,90,92 allow the therapeutic exception, 5,6,22,25,31,33,34,37,[58][59]…”
Section: Litigation Outcomes Less Predictablementioning
Rationale, Aims and Objectives
Six years ago, the Supreme Court judgement in Montgomery v Lanarkshire changed medical law. It introduced a new patient‐based standard of care for the communication of treatment risks and alternatives, rejecting the doctor‐based standard that had long governed all aspects of medical negligence. This is the first systematic review to analyse the literature on Montgomery. Our aim is to appraise and synthesize the literature on Montgomery's impact on medicine and the law and to identify areas for further academic enquiry and implications for professional guidance and training.
Methods
Searches were run in Medline, Embase, PsycINFO, Web of Science, Scopus, Westlaw UK, HeinOnline, and LexisNexis. Two reviewers screened papers. Extracted data was analysed and discussed by an interdisciplinary team. PRISMA guidelines were followed.
Results
Of the 1134 papers identified, 100 met the inclusion criteria. These papers revealed significant disagreement on four core sets of issues, focusing on Montgomery's impact on: (1) legal and professional duties; (2) medical practice; (3) the patient experience; and (4) litigation. The first set addresses whether the case actually changed doctors' legal and professional duties, the relationship between GMC guidance and medical law, and the boundaries of Montgomery. The second explores whether the decision has incentivized defensive medicine, its resource implications, and doctors' knowledge of it. The third concerns whether and how the decision has promoted patient autonomy and involvement in their own care. The fourth focuses on whether the case has caused an increase in litigation.
Conclusions
Despite the abundance of legal and medical literature on Montgomery, many issues remain unresolved. Empirical research is required for many of the questions. Doctrinal analysis informed by medical knowledge is also required to assess whether Montgomery may have unrecognized ramifications—for example, whether it will require the disclosure of risks associated with diagnostic uncertainty, where doctors advise patients without performing procedures.
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