Montgomery's legal and practical impact: A systematic review at 6 years

Abstract

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.

The conundrums of the reasonable patient standard in English medical law

“…In the UK there have been unsystematic and uneven attempts to water down Montgomery case after case [ 21 ]. It remains to be seen whether the English version of the reasonable patient standard would give due recognition to real-world constraints on medical practice [ 24 ] without, of course, excusing preventable harm merely in the name of resource constraints and the like.…”

How and why do doctors communicate diagnostic uncertainty: An experimental vignette study

“…5 In the United Kingdom, Montgomery versus Lanarkshire (2015) established that doctors are legally required to disclose 'material risks' associated with different treatment options, 5 but it is unclear if this duty extends to disclosing the differential diagnosis or diagnostic uncertainty. 27 In summary, the extent to which doctors should communicate diagnostic uncertainty to patients has been recently considered by both legal and ethical scholars. The empirical data presented in this study should be considered within the context of this changing legal and ethical landscape.…”

“…In the United States, Jandre v. Physicians Insurance Company of Wisconsin (2012) established that a physician could have a duty to disclose diagnostic uncertainty under the ‘reasonable patient' standard 5 . In the United Kingdom, Montgomery versus Lanarkshire (2015) established that doctors are legally required to disclose ‘material risks’ associated with different treatment options, 5 but it is unclear if this duty extends to disclosing the differential diagnosis or diagnostic uncertainty 27 …”

Comparing caesarean birth rates: An institutionalized habit that is hard to break

“…Going back further to 1996, newborn Charlotte died after NUH denied her mother's caesarean birth request, and lawyers described the ensuing court ruling as a 'legal landmark'. 39 Yet 20 years later, and regardless of another 'landmark judgment [Montgomery]', 40 Sebastian Harrold died 7 weeks after his birth at NUH, for the same reason. 41 Hidden in plain sight, and evidenced by complaints and claims at numerous other NHS trusts in England, the connection between these failings makes the seemingly willful inattention and inaction of large, powerful organizations all the more morally distressing.…”

“…Going back further to 1996, newborn Charlotte died after NUH denied her mother's caesarean birth request, and lawyers described the ensuing court ruling as a ‘legal landmark’. 39 Yet 20 years later, and regardless of another ‘landmark judgment [Montgomery]’, 40 Sebastian Harrold died 7 weeks after his birth at NUH, for the same reason. 41…”