The landmark case of Montgomery vs Lanarkshire Health Board and the end of medical paternalism.

#consent #autonomy #GMC #Montgomery

In March 2015, the UK's Supreme Court’s judgment in the case of Montgomery v Lanarkshire Health Board[1] was announced. This ruling's importance in the protection of personal autonomy is so great, that it has been heralded by many medical and legal experts as ‘the end to medical paternalism’[2] and ‘the death of Sidaway’[3], the latter referring to the previous pivotal court decision in Sidaway v Bethlem Royal Hospital[4] 30 years ago.

In Montgomery, Nadine Montgomery, who had small stature and diabetes, was not warned during pregnancy of the increased risks of shoulder dystocia that might occur during vaginal delivery and was therefore never given the option of having a caesarian section. During delivery, shoulder dystocia did occur and as a result the child sustained severe permanent damage from prolonged brain hypoxia and brachial plexus injury; this would have been prevented had caesarian section been selected as an alternative delivery option. Montgomery argued that had she been informed of the increased risk of shoulder dystocia due to her diabetes, she would have chosen to undergo delivery via caesarian section.

Montgomery initially lost her case in the Court of Session because the Sidaway test was used to determine negligence. Under Sidaway, the test of negligence used in Bolam v Friern Hospital Management Committee[5] (and by extension Hunter v Hanley[6]) does not just apply to the treatment given, but can also be extended to the information offered during the consent process. In other words, failure to warn of risks can only be considered negligent if it is not supported as proper by a responsible body of medical opinion, thus relying on the reasonable practitioner to be the hypothetical arbiter or clinical negligence. In Nadine Montgomery’s case, as the risk of shoulder dystocia was estimated to be only 9-10%, not warning her of the risk was deemed appropriate by an expert body of opinion, leading to a decision against her at the Court of Session. Montgomery appealed the decision and her appeal was unanimously held by the Supreme Court Lords, who found (para 86) that:

‘there is no reason to perpetuate the application of the Bolam test in this context any longer’

and also (para 87) that:

‘the test of materiality [regarding risks involved in a procedure] is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’.

In summary, the Lords in Montgomery both recognise and enshrine in law the importance of patient autonomy, by entirely shifting the focus of clinical negligence liability from the opinion of the reasonable practitioner used in Bolam, Hunter, and Sidaway to the expectations of the reasonable person.

References [1] [2015] UKSC 11; [2013] CSIH 3; 2013 S.C. 245 [2] Clare Dyer, 'Doctors should not cherry pick what information to give patients, court rules' (2015) 350 BMJ [3] Kirsty Keywood, 'The Death of Sidaway: Values, Judgments and Informed Consent' (BMJ, 2015) <http://blogs.bmj.com/medical-ethics/2015/03/15/the-death-of-sidaway-values-judgments-and-informed-consent/> accessed [4] [1985] AC 871 [5] [1957] 2 All ER 118 [6] 1955 SC 200; 1955 SLT 213