Abstract
The UK Supreme Court held in Montgomery v Lanarkshire HB (2015) that practitioners must take reasonable care to ensure patients are aware of any material risks involved in treatment. We reviewed all court decisions since Montgomery which deal with the case, to establish how this judgment is being interpreted by the courts and the implications of this for risk disclosure in practice. We found that Montgomery’s application has been expanded in a number of ways: information about reasonable alternatives includes the provision of information about their risks and benefits; Montgomery applies to post- as well as pre-operative disclosure; and the timing of discussion with patients about risks is important. Conversely, there is evidence that the parameters of Montgomery are being curtailed, giving rise to questions about judicial commitment to patient autonomy. In some cases there is focus on the objective risks of procedures as opposed to patients’ subjective concerns; in others, causation of injury is sometimes a factor that will defeat claims. There are also further questions about whether patients now should accept more responsibility for the outcome of decisions they make. We conclude that practitioners engaged in discussions about the risks of proposed treatments and their alternatives have been left in a position of uncertainty by the courts in relation to the obtaining of informed consent in practice. It is now critical that updated guidance is provided by the UK General Medical Council to give practitioners and service providers confidence that they are adhering to the law.
Highlights
The landmark judgment of the UK Supreme Court in Montgomery v Lanarkshirea held that a doctor must take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments
This article, argues that despite the apparent clarity that the case brings to the question of risk disclosure, practitioners are left with insufficient certainty as to how they should help patients to realise their autonomy in practice
This piece presents the findings of a project which considers the implications of Montgomery for practitioners and patients in the practical process of obtaining informed consent
Summary
The landmark judgment of the UK Supreme Court in Montgomery v Lanarkshirea held that a doctor must take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments. Where any scope for harm is exacerbated by the early performance of that medical procedure, irrespective of whether there has been a failure to disclose certain risks, it would not be wholly unreasonable for a judge to conclude that the patient contributed to her own harm and to adjust the level of damages In this case, while the patient was held not to be contributorily negligent for failing to follow the conservative management plan, it is certainly possible that in future assessing patients’ conduct in the consent process could be a further way of mitigating against the harsher effects of Montgomery. The implications of Montgomery, and its subsequent interpretation, are that practitioners are expected to invest the time required both to provide information about risks and benefits and to obtain information from the patient which will enable them to do so in a meaningful way.u It is hoped that this will confer a number of benefits in the long run, as it may reduce the likelihood of doctors becoming the subject of a lawsuit, and because it may facilitate improved communication between doctors and patients, encouraging levels of patient engagement which are recognised as contributing to their good health. Any additional time and resource should not be channelled into ticking extra boxes and listing more risks, but to having an open and transparent discussion with the patient to maximise their understanding and ownership of the decision.v
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