Not so new directions in the law of consent? ExaminingMontgomery v Lanarkshire Health Board

Abstract

This paper examines the UK Supreme Court decision in Montgomery v Lanarkshire Health Board, which deals with consent and information disclosure in medical treatment and care. It signaled a move away from a 'doctor knows best' approach to one that focuses on disclosing information to which particular patients would attach significance. Notwithstanding concerns about increased litigation and loss of professional autonomy, the reality is that the decision will make little difference to healthcare practice and consent in the UK. The Supreme Court has endorsed a view that most lawyers and doctors thought already prevailed, and it reflects the General Medical Council's guidance on the issue of consent in any case. Given recent healthcare scandals in the National Health Service (NHS), the Supreme Court's legal recognition of the importance of recognizing patient autonomy in disclosing risks about medical treatment and care is a welcome development.

Montgomery and informed consent: where are we now?

“…12 Some argued that the standard imposed by the Montgomery decision merely reflected good practice as already specified by the GMC 13 and would make little practical difference to clinicians. 8 Nevertheless, the concern generated by the ruling might affect doctors' behaviour and other potential cases. Others have raised questions about the implications for the legal treatment of clinical judgment, suggesting that it represents "a radical move away from English law's traditional respect for clinical expertise."…”

“…5 We held a public debate in 2015, including doctors, lawyers, and medical students, which showed renewed tension between the professional discretion of doctors and patients' choices 6 ; indeed, the verdict has been characterised as supporting patient autonomy over medical paternalism. [3][4][5][6][7][8][9] But what are the implications for doctors' practice and their legal liability? Two years after the Supreme Court's decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice.…”

A survey of doctors at a UK teaching hospital to assess understanding of recent changes to consent law

“…A material risk is described as one that ‘a reasonable person in the patient's position would be likely to attach significance to … or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to’. This has been described as a shift from ‘doctors know best’ to a ‘particular patient’ approach [3]. Despite legal judgements from the mid 1990's onwards increasingly questioning Bolam [4], [5], and championing more patient orientated approaches with regards to the depth and amount of information discussed with patients during the consenting process, Bolam persisted and was indeed supported by the Scottish courts before the Supreme Court appeal.…”

The Montgomery judgment and pharmacist consultations

“…However, it is a positive sign that although the majority of pharmacists were not aware of what would amount to either a material risk or informed consent, the vast majority wanted further education on the subject. The majority of academic commentary 16,17 on Montgomery suggests that although it was time that informed consent was now patient-centred, the previous existence of the GMC guidelines meant this was nothing new. The GMC provides guidance on best practice between doctor and patient, 18 referred to by the Supreme Court in the Montgomery judgment.…”