In their
recent article Farrell and Brazier [1]
assert that the recent decision in Montgomery v Lanarkshire
Health Board [2]
should not cause doctors any anxiety or concern. However the legal perspective
on the case is perhaps not the same as the clinician's perspective. From the
clinician's perspective there are reasonable concerns.
Firstly, we
should note that the damages in Montgomery amounted to approximately
5.25 million pounds [3]
and were recovered in negligence as a result of the breach of the duty to
adequately inform. An action for a breach of the GMC rules of conduct would not
have resulted in an award of this size. Montgomery may not have changed
the expected rules of conduct for clinicians, but in terms of enlarging the
extent of liability for breach, the case has taken the velvet glove off the
mailed fist.
Secondly,
the model underlying medical decision-making is now to firmly place the
liability for ordinary consequences flowing from medical decision-making in the
hands of the patient:
"treats [patients], so far as possible, as
adults who are capable of understanding that medical treatment is uncertain of
success and may involve risks, accepting responsibility for the taking of risks
affecting their own lives, and living with the consequences of their
choices."[4]
The
obligation on the doctor is, through the provision of information, to place the
patient in the position to make the necessary choices. In order to achieve this
outcome it is asserted that the Court has made a combination move in Montgomery:
(a) there is a shift in the yardstick used to
judge the standard of disclosure from the Bolam
standard towards a modified objective patient standard; and
(b) there a shift of view point from the
perspective of the clinician towards the perspective of the patient.
The first
point has been well telegraphed by the Courts as Farrell and Brazier point out.
However, the second point is not so clearly already embedded in clinical
practice. Briefly, let us put aside the reasonable patient disclosure limb of
the standard and focus only upon the particular patient disclosure limb of the
test.[5] The particular patient disclosure limb
disclosure requires disclosure where:
(i)
the doctor is aware that the particular patient would be likely to attach
significance to the risk; or
(ii) the doctor should
reasonably be aware that the particular patient would be likely to attach
significance to the risk.
The
question has changed from, what can and should the clinician deliver to what
does this patient need to know? [6]
"The assessment is therefore
fact-sensitive, and sensitive also to the characteristics of the patient."[7]
Conforming
to such a particularist legal rule is hard in
practice because it requires the clinician to have some insight into the thoughts
of each patient. Thoughts that the patient need not express until the court
hearing for breach of the duty of care, as the facts of Montgomery
demonstrate.
Given that
the mind of the patient is not necessarily in full purview to the clinician the
question is what does the clinician have to do in practice in the particular
case in order to prove valid consent? Simply answering the patient's questions
is no longer enough. A signed consent form is no longer enough. What would be
enough?
Developing
and then embedding a process approach to consent with adequate documentation to
avoid liability is a new demand on already overstretched resources. The Court
recognized that more clinical time will be needed in order to secure adequate
consent.[8]
But this will have to be costed and delivered.
The
decision in Montgomery leaves process failures to be challenged in
public law rather than in tort.[9]
Given the differences between judicial review actions and negligence actions,
the effect is likely to be to push liability for process failures downstream
onto clinicians.
Thirdly,
there is the question of whether a patient can be told too much? After the
fact, the patient can complain that there was something could have been known
and that were not told that adversely affected their judgement sufficiently to
justify an action in negligence. But, by analogy, can the patient also complain
about facts that they were told but should not have been told? Would such a
positive affront to the autonomy of the patient be actionable?
In
conclusion, there are things in the judgement that reasonably give clinicians
pause for thought.
[1] Farrell AM, Brazier M. Not so new
directions in the law of consent? Examining Montgomery v Lanarkshire Health
Board. J Med Ethics 2015 (online first) doi:10.1136/medethics-2015-102861
[2]Montgomery v Lanarkshire Health
Board[2015] UKSC 11
[4]Montgomery v Lanarkshire Health
Board[2015] UKSC 11 at para 81.
[5]Montgomery v Lanarkshire Health Board[2015]
UKSC 11 at para 87.
[6] Heywood R. R.I.P. Sidaway:
patient-oriented disclosure-a standard worth waiting for? Montgomery v
Lanarkshire Health Board[2015] UKSC 11. Med Law Rev 2015;23(3):455-66.
[7]Montgomery v Lanarkshire Health
Board[2015] UKSC 11 at para 89.
[8]Montgomery v Lanarkshire Health Board[2015]
UKSC 11 at para 93.
[9]Montgomery v Lanarkshire Health Board[2015]
UKSC 11 at para 75.
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