Doctor-patient dialogue now a legal obligation

The decision has an important bearing on the issue of informed consent.

What was the previous position?
This area of law was previously considered by the House of Lords in the Sidaway case in 1985 when it was held that it was for doctors to decide how much to tell a patient about the risk of treatment.

A doctor’s conduct would previously be considered acceptable if it would be supported by a responsible body of medical opinion, and in such an eventuality it would not be held to be negligent. This was known as the Bolam principle. The Montgomery case has unequivocally decided that this principle is no longer to be followed on issues of consent.

What happened in this case?
The case in question related to the Claimant’s birth in 1999.  During delivery he was starved of oxygen and was left with severe brain damage.  A claim was brought on the basis that the mother’s obstetrician had failed to give her the proper warnings on the basis that she was both small and diabetic and there is a risk with diabetic mothers that their babies will be large.

Sadly the Claimant’s shoulders were stuck during delivery and there was a 12-minute delay in freeing them, during which time he sustained a brain injury. He also suffered paralysis of the arm due to the force required in delivering him.

It was Mrs Montgomery’s case that she should have been warned of the risks of shoulder dystocia. Had she been so warned she would have been offered, and would have elected to have, a caesarean section.

The Defendant’s case was that the risks of a serious problem were very small, which was supported by expert evidence.

The Supreme Court noted, however, that the obstetrician’s view did not appear to be a purely medical judgement, the latter having stated that “if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections”.

The Supreme Court decided that the obstetrician should have warned the mother about the risk and should have discussed alternative modes of delivery including caesarean section.

What is the new position on informed consent?
The Supreme Court noted that more recent cases had eroded some of the supposed certainties provided by the Sidaway ruling, and that European Court of Human Rights rulings had recognised a duty to involve a patient in treatment decisions.

The ruling in this case means that a doctor is now “under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”.

Rather than referring to the responsible body of medical opinion as per the Bolam test, a material risk is assessed by reference to a reasonable person in the patient’s position, and it must be that particular patient.

Should all information now be given?
The only caveat now in terms of withholding information is where there is a risk that its disclosure would be seriously detrimental to a person’s health.

The Supreme Court stressed that this is a very limited exception and should not be used as the general principle or in circumstances where the practitioner is of the view that someone is likely to make a choice which would be contrary to the practitioner’s belief of a person’s best interests.

What does this mean for healthcare practitioners?
Although the Supreme Court Justices acknowledged it may not be welcomed by some healthcare providers, they noted that dialogue between a doctor and patient in the former’s advisory role would now be a legal obligation.

The Justices were explicit that doctors with less inclination or skill for communication, and those with little time, would nevertheless now be legally obliged to pause and engage in discussion. In practice, however, there may be little need for change as the GMC’s professional guidance requires a very similar standard of consent.

One hoped-for benefit from this obligation for dialogue is that recriminations and litigation may be less likely as patients will be empowered to make informed decisions and take responsibility for the ultimate choice to undergo treatment.

Clear documentation of the process will, as always, be the best defence.

How can I find out more about this?
For further information on the implications of this ruling and how it could apply to your operations and practice, please get in touch.