Doctors are legally required to discuss all options for treatment and associated risks with their patients, the Supreme Court has held in a landmark case.
In Montgomery v Lanarkshire Health Board [2015] UKSC 11, Nadine Montgomery was awarded £5.25m compensation after a 16-year legal fight for compensation. She claimed she had the right to know that her small stature and diabetes enhanced the risk of complications during birth. Her son was asphyxiated when his shoulder got stuck, had to be resuscitated and suffered brain damage.
The obstetrician involved was aware of the risk of shoulder dystocia but decided not to discuss it with Montgomery, who said she would have had a caesarean if she had known the risks involved.
Seven justices of the Supreme Court overturned the Court of Session and Court of Appeal’s earlier decisions.
Fred Tyler, partner at Balfour and Manson, who advised Montgomery, says: “This is almost certainly the most significant medical negligence judgment in 30 years—a momentous decision which will affect the doctor-patient relationship throughout the UK.
“Doctors will have to discuss with their patients the options that exist in their treatment and advise them about the alternatives and any associated risks. The Supreme Court has modernised the law on consent and introduced a patient-focused test to UK law, which allows the patient rather than the medical professionals to decide upon the level of risk they wish to take in terms of a particular course of action, given all the information available. The court has stated very firmly that medical paternalism no longer rules and the decision will certainly have long term consequences.”
Charles Foster, Serjeants’ Inn Chambers, says: “Montgomery means that the Bolam test (which asserts that a doctor will not be negligent if what she has done would be endorsed by a responsible body of opinion in the relevant specialty) no longer has any place in deciding whether or not consent has been validly given.
“For a long time, though, the courts have been turning a blind eye to the House of Lords case (Sidaway), which seemed to suggest that Bolam was the touchstone of liability in consent cases. Montgomery says that blind eyes were rightly turned.
“Montgomery will generate litigation about what ‘reasonable patients’ want, and about the extent of the duty of hard-pressed doctors to inquire into the need of particular patients to know particular information.”
Heather Grimbaldeston, partner at Plexus Law, says the ruling is likely to “result in more litigation over uncertainties surrounding what is a ‘material risk’, and to what extent is a doctor required to delve into a patient’s personal background so as to ‘reasonably be aware’ of what a patient might attach significance to".
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