Abstract
The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now (rightfully) accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically (and legally) obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally.
Highlights
Montgomery v Lanarkshire Health Board [26] is a recent UK Supreme Court judgment that overturned the 1985 House of Lords decision in Sidaway [42] to govern the practice of informed consent by applying the well-established Bolam [2] professional standard of non-negligent care
Shoulder dystocia arose as a complication during the vaginal delivery of her baby, leading to the occlusion of the umbilical cord and causing the baby to suffer from a brachial plexus injury that required life-long, intensive medical care and treatment
Mrs Montgomery sought damages in negligence on the grounds that she ought to have been provided with information about the risk of shoulder dystocia, and of the alternative option of an elective Caesarean Section
Summary
Montgomery v Lanarkshire Health Board [26] (from this point on: Montgomery) is a recent UK Supreme Court judgment that overturned the 1985 House of Lords decision in Sidaway [42] to govern the practice of informed consent by applying the well-established Bolam [2] professional standard of non-negligent care. In general terms, whilst one might reasonably think that obstetrics practice, and, for example, psychiatric practice, would be more impacted by how the ‘reasonable person’ limb impacts on how patient well-being ought to be conceptualised differently, one might conclude that in surgical practice, or in other acute medical treatment contexts, patients’ well-being (and, the requirements of the ‘reasonable person’ limb) ought to be understood in ways that remain closely aligned with a more narrowly clinical interpretation of patients’ well-being interests After all, it does not seem unreasonable, at least prima facie, to claim that the reasonable person in the patient’s position would recognise that information about the likelihood and severity of risks of harm arising in a particular procedure are relevant to advancing patients’ well-being in ways that point towards disclosure. The approach adopted by the Supreme Court leaves, in our view, sufficient ‘elbow room for good practice’ [17], requiring doctors to draw upon a range of skills and expertise in providing patient-centred care that includes making carefully reasoned decisions with patients about what information ought to be disclosed to the patient within the doctor–patient relationship
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