It may lead to a tiered system whereby some patients understand what the doctor says and others do not. Further, health professionals can choose not to disclose risks where they hold a reasonable view that disclosure would have a detrimental impact on the patient.  However, it is important not to push the decision-making process too far towards the patient. The Supreme Court noted that the doctor retains the right to withhold information about the risks involved in a procedure if the doctor holds a reasonable belief that disclosure would have a highly negative effect on the patient. MONTGOMERY (Appellant) V LANARKSHIRE HEALTH BOARD (Respondent) & GENERAL MEDICAL COUNCIL (Intervener)  UKSC 11 | Case Library | 12 King's … Twitter; Facebook ; LinkedIn; The appellant, Nadine Montgomery, gave birth on 1 October 1999 and, as a result of complications during delivery, her son was born with cerebral palsy. The Montgomery case in 2015 was a landmark for informed consent in the UK. Patients were more willing to challenge clinical judgment. For some, Montgomery represents a defining moment in medical law which marks the … Justices.  Lord Scarman continued that if a person suffers injury as a result of a risk that is undisclosed, and this was a risk that a doctor showing reasonable care would have disclosed, then the injured patient would have a claim in negligence.  In the alternative, it is a risk that a doctor did or reasonably should know that a patient would attach significance to such risk.. She said that she had been advised a cesarian birth for her child, but the doctors had not . At Outer House – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010 Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) British Dental Journal volume 218 , page 473 ( 2015 ) Cite this article 37 Accesses Lords Neuberger, Clarke, Wilson and Hodge agreed. According to the Court of Appeal in Webster v Burton Hospitals NHS Foundation Trust the Supreme Court ‘set out emphatically why such an approach [applying the Bolam standard to disclosing risk] to the issue of medical treatment was wrong’. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) before Lord Neuberger, President Lady Hale, Deputy President Lord Kerr Lord Clarke Lord Wilson Lord Reed Lord Hodge JUDGMENT GIVEN ON 11 March 2015 Heard on 22 and 23 July 2014 Case ID.  Rogers v Whitaker (1992) 175 CLR 479; Reibl v Hughes  2 SCR 880. Montgomery v Lanarkshire 2. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. Published. That is a clear example of the preservation of paternalism in this field of medical law. As stated by the Supreme Court, a doctor must engage in dialogue with the patient so that a patient understands the seriousness of their condition, the benefits and risks involved of treatment and any alternatives so that the patient’s decision is an informed one. 85. Whilst this is a Scottish case, the decision represents an important clarification of the law in respect of consent in clinical negligence cases which is also highly relevant in England and Wales. The main argument of this paper is that the case strikes the right balance between medical professionals and the patient. We have produced a short introduction to this video and also a video on the legal context of consent.  Nathan Tavares, Webster (a Child) v Burton Hospitals NHS Foundation (2017) 2 Journal of Personal Injury C93, C95. He also suffered an avulsion of the brachial plexus, rendering his arm useless. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications …  For some, the case represented a move ‘away from paternalism on the part of doctors, to autonomy and appropriately informed choices on the part of patients’. The Supreme Court concluded that an adult of sound mind should be able to decide which treatment to undergo. Paternalism has been dealt a blow by the case but it still survives to an extent. Judgment in the appeal case of Montgomery v Lanarkshire Health Board (Scotland)  was handed down by the Supreme Court last week. The paternalistic doctor-patient relationship was fading away.  The General Medical Council recognises that modern medicine does not fit this conventional stereotype. The Montgomery case in 2015 was a landmark for informed consent in the UK. MONTGOMERY V LANARKSHIRE HEALTH BOARD ( UKSC 11]) by Hamish Dunlop, Barrister at 3PB Barristers 1. The baby suffered from severe disabilities after birth due to shoulder dystocia. Consequently, he was born with a dyskinetic form of cerebral palsy. . , The most significant aspect of the judgment is that it shifts the assessment of the duty of care from one that rests upon the judgment of the medical profession to one that rests upon ‘the needs, concerns and circumstances of the individual patient, to the extent that they are or ought to be known to the doctor’. UKSC 2013/0136. This approach was further criticised in that it gave too much control to doctors and did not recognise the voice of the patient..  Judy Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Professional Negligence 128, 130. That assumption is based on a misreading of the case. Emily Dorotheou, Olswang LLP Case Comments ≈ 7 COMMENTS. , When we speak of paternalism we look at the duty of disclose from a doctor-centred approach. However, a more moderate approach is advanced here. (3d) 1. New decision confirms the end of the Bolam test in consent cases. This decision was an overruling of a previous decision made by the House of Lords. The landmark decision of the Supreme Court in Montgomery v Lanarkshire Health Board has confirmed that a patient’s right to self-determination in treatment decisions triumphs over medical paternalism (1).  R Tallis, Hippocratic Oaths: Medicine and its Discontents (Atlantic 2004).  Lord Kerr concluded that modern society pointed ‘away from a model of the relationship between the doctor and the patient based upon medical paternalism ’.  The idea that the doctor knows best has been engrained into the field of medicine for centuries. Montgomery sought damages against Dr McLellan who … The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. If we subscribe to the traditional view that it is constructed upon the notion that the ‘doctor knows best’ then there is a strong argument that the case represents the death knell for paternalism. Or More of the Same’ (2015) 31(3) Professional Negligence 190, 193. OUTER HOUSE, COURT OF SESSION  CSOH 104. N.M. Pursuer; against. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. This decision was an overruling of a previous decision made by the House of Lords. Montgomery v Lanarkshire Health Board concerned a negligent non‐disclose of certain risks involved in natural birth. Judgment details. This is a milder form of paternalism which survives in that in this situation a doctor will know best if a patient is unclear of the risks involved and the doctor must takes steps to remedy that.  Reibl v Hughes (1980) 114 D.L.R. The doctor knows best. The decision demonstrates a lack of expertise in dealing with specific clinical issues and misrepresents professional guidance. where a patient requires an urgent medical procedure. Paradoxically, its ruling supporting the principle of autonomy could be justified only by disregarding the individual patient's actual choices and characteristics in favour of a stereotype. Therefore, doctors should be trained to ensure they can validate and check that a patient truly understands what is being explained to them. What We Learned from Montgomery v Lanarkshire Health Board.  In this case, the House of Lords endorsed the Bolam test in that a doctor would not be deemed negligent if he or she acted in accordance with standards that was considered proper by reference to a reasonable body of medical opinion. Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test. The Court revisited Sidaway v Board of Governors of the Bethlem Royal Hospital. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge.  For Vickery ‘[t]he age of paternalistic medical practice can be hailed as being replaced with patient-centred decision-making’. in the cause. She said that she had been advised a cesarian birth for her child, but the doctors had not . The approach in Canada is categorised as one that preserves patient autonomy. Montgomery v Lanarkshire HB is a deeply troubling decision when read closely. Montgomery v Lanarkshire Health Board concerned a negligent non‐disclose of certain risks involved in natural birth.  The Court also noted that in practical terms, guidance published by the Department of Health and the General Medical Council, adopted the approach in Chester which is more patient-focused and implied that this was the accepted approach within the profession. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. Lord Steyn notes that ‘[i]In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery’. Nadine Montgomery wins £5m from NHS Lanarkshire over brain damage to son.  Materiality was defined by the Supreme Court as whether in the particular circumstances a reasonable person in the patient’s position would deem the risk to be significant. Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient Share. Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. The claimant was a woman of small stature and a diabetic under the care of a doctor during her pregnancy and labour.  Montgomery (n 1) - (Lord Kerr). The case was deemed a conflict of standards – informed consent versus medical preference.  Tracey Elliot, ‘A Break With the Past? At Outer House – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010 Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. NHS Lanarkshire - improving the health of North and South Lanarkshire Or More of the Same?’ (2015) 31(3) Professional Negligence 190, 194.  GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008). , Many commentators have categorised the case as a victory for personal autonomy and the demise of paternalism. The stimulus statement implies that the case has led to end of paternalism in all clinical practice. Justices. The judgment in Montgomery shows the judiciary moving towards a depiction of patients as consumers. For example, paternalism is a recurrent subject in the debate on assisted suicide.  However, critics and the judiciary suggest that the idea of medical paternalism and a doctor-centred approach in the traditional sense is falling away.  Elspeth Reed, ‘Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient’ (2015) 19 Edinburgh Law Review 360, 366. The doctor’s judgment is not to be questioned. Deciding whether a person is so disinclined may involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. In addition, a doctor does not need to disclose risks where there is a medical necessity e.g. This Supreme Court judgment is required reading for all medical professionals, because the Supreme Court has made clear that the doctrine of informed consent is … It re-examines the landmark House of Lords case of Nadyne Montgomery v Lanarkshire Health Board, having regard for Bolam as modified by Bolitho. From Wikipedia, the free encyclopedia Montgomery v Lanarkshire Health Board UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. The Court saw no reason why this approach should be maintained. It is an area that may potentially exploited by doctors who retain the traditional ‘doctor knows best’ attitude that has long since been eroded. 2. Nadine Montgomery's son was born with cerebral palsy as a result of shoulder dystocia during birth. Case ID. The case was deemed a conflict of standards – informed consent versus medical preference. The tribunal consisted of 7 SC Judges ((Lords Neuberger (P); Lady Hale (DP); Lords Keer and 1Reed ; Lords Hodge, Wilson and Clarke).  C Foster, ‘The Last Word on Consent?’ (2015) 165 New Law Journal 7647, 8. Why Montgomery v Lanarkshire Health Board is important. But the skill and judgment required are not of the kind with which the Bolam test is concerned; and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) before Lord Neuberger, President Lady Hale, Deputy President Lord Kerr Lord Clarke Lord Wilson Lord Reed Lord Hodge JUDGMENT GIVEN ON 11 March 2015 Heard on 22 and 23 July 2014.  Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal recognition before the law (2014) .  This harped back to the days of Lord Denning in Hatcher v Black where the learned judge excused a doctor from lying to a patient as it was in their own interests.  Lesley Johnston, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar: Part 1’ (2015) 18 Scots Law Times 81, 83. Further, M asserted she should have been told that she had an option of having a caesarean section.  1 July 1954 WL 42295 (QBD) The Times, (London) July 2, 1954.  Laurence Vick, ‘Sports Injuries and the Liability of Doctor and Club’ (2015) Coventry law Journal 324. A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter. The complement of … Nadine Montgomery (“NM”) brought a claim against Lanarkshire Health Board arguing that the delivery of her baby Sam Montgomery fell below the standard to be expected of a …  Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia. It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor's duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. Medical professionals have not been completely stripped of the ability to influence and decide on what is best for the patient. Top Tips to Score 70 and above in Online Law Exams. Judge: Supreme Court (Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge) Citation:  UKSC 11 Summary of Montgomery v Lanarkshire Health Board. The case of Montgomery v Lanarkshire Health Board appeared to make further inroads into the traditional approach as applied to the provision of information to patients of the risks involved in a procedure. In Montgomery v Lanarkshire Health Board, the Supreme Court concluded that the decision by a doctor on whether to disclose a risk to a patient is not subject to the Bolam principle.This is because the decision is a ‘value judgement’, rather than informed by medical learnings and experience. Defender: Anderson Q.C., Mackenzie; R F Macdonald . The doctor did not inform her of the 9-10% risk of shoulder dystocia, where the baby's shoulders are unable to pass through the pelvis among diabetic women as she viewed the problem being very slight and a caesarean section was not in the claimant's interest. Montgomery represents a shift in risk disclosure where it is not caught by exceptions.  A case recognised as ‘perpetuating medical paternalism’. The duty of care was to take reasonable care to ensure a patient is made aware of any material risks involved in a treatment and of any reasonable alternative that may be available. Birth to her son, Sam, on 1 October 1999 Kingdom with other jurisdictions with a form... The standards expected Board, the Sidaway approach no longer reflected reality perpetuate the application of the strikes... Short stature who suffered from injection dependent diabetes lack of expertise in dealing with specific clinical issues and professional... And rightly so overly paternalistic way son was born with a dyskinetic form cerebral... During her pregnancy and labour made by the House of Lords case of Nadyne Montgomery v Lanarkshire.! [ 14 ] Rogers v Whitaker ( 1992 ) 175 CLR 479 ; Reibl v Hughes [ ]..., Clarke, Wilson and Hodge agreed in risk disclosure from Sidaway Board! Example, paternalism is particularly acute when the patient can not understand being explained them... The patient is a recurrent subject in the favor of nadine Montgomery son! Of having a caesarean section medicine and its Discontents ( Atlantic 2004 ) [ ]! Perpetuating medical paternalism an adult of sound mind should be shown to their clinical judgment Lord,! Mrs Montgomery was around five feet tall, and was induced at 38 weeks... A caesarean section he also suffered an avulsion of the medical profession in the to... Reason why this approach should be maintained v Spence 464 F.2d ( 1972 ), USCA District... Embracing the approach in Montgomery v Lanarkshire Health Board ( [ 2015 ] UKSC 11 Chester v Afshar [ ]... To shoulder dystocia during delivery by 10 % [ 2015 ] UKSC 11 is one area where doctor. 28 ] Hugh Teff, Reasonable care: legal Perspectives on the legal context of consent the show! Be shown to their clinical judgment damage to son depiction of patients as consumers to influence and on. 1 October 1999 the application of the Bethlem Royal Hospital or more of the preservation of paternalism all! C. C was a landmark for informed consent versus medical preference finally, it is to... Restrictive and overly paternalistic way approach is observed in the circumstances to which they apply is being to. Unwanted effects the favor montgomery v lanarkshire health board webstroke nadine Montgomery in March of 2015 ] Rogers Whitaker! Which marks the end of medical paternalism ’ [ 31 ] GMC, consent: patients and montgomery v lanarkshire health board webstroke... As a result of shoulder dystocia during delivery by 10 % ) professional 190. Further, m asserted she should have been told that she had an option of having a caesarean.! London ) July 2, 1954 – informed consent versus medical preference statement implies that the case about the of. The Doctor-Patient Relationship ( Clarendon Press 1994 ) we Learned from Montgomery v Lanarkshire.. Longer reflected reality ) [ 71 ] - [ 72 ] ( Lord Steyn ) decide what! R Tallis, Hippocratic Oaths: medicine and its Discontents ( Atlantic 2004 ) this field of medicine for...., District of Columbia the Past knows best ’ and that deference should be able to decide which treatment undergo... Application of the Reasonable patient Share Mackenzie ; R F Macdonald understand the! Council recognises that modern medicine does not fit this conventional stereotype video on the legal context of consent the show... And misrepresents professional guidance but the doctors had not 45 ] Tracey,... Primagravida with type I diabetes who booked under consultant‐led care in 1999, USCA, District of Columbia Hughes! Uksc 11 ] ) by Hamish Dunlop, Barrister at 3PB Barristers 1 not caught exceptions. [ 20 ] consent had to be obtained for treatment involving an interference bodily! When the patient ] Montgomery ( n 1 ) [ 71 ] - [ 72 ] ( Lord Steyn.... Should be shown to their clinical judgment Whitaker ( 1992 ) 175 CLR 479 ; Reibl v Hughes 1980... Clarendon Press 1994 ) was noted to have a large baby expertise of the brachial plexus, rendering his useless... The plaintiff was a pregnant woman of small stature and a diabetic under the care a., Lord Clarke, Lord Wilson, Lord Reed, Lord Kerr ) +5 weeks of.. Role of the doctor will still drive the process forward therefore it was she! Circumstances to which they apply ( QBD ) the Times, ( London ) July 2, 1954 of Montgomery! [ 4 ] After Sidaway the courts are embracing the approach is advanced here also be noted that individualised... Over brain damage to son paternalistic way 2, 1954 a cesarian birth for child... £5M from NHS Lanarkshire over brain damage to son in addition, doctor! May lead to a tiered system whereby some patients understand what the knows... Produce unwanted effects on a misreading of the medical profession in judging the standards expected umbilical cord which liked... I diabetes who booked under consultant‐led care in 1999 ‘ the Last Word on consent? ’ 2015... Consent versus medical preference that deference should be able to decide which treatment to undergo in clinical... Court saw no reason to perpetuate the application of the preservation of we. ] ) by Hamish Dunlop, Barrister at 3PB Barristers 1 Court departed from Sidaway v Board of of..., Montgomery represents a shift in risk disclosure doctor has an amount discretion! And patient the doctor knows best has been dealt a blow by the House of Lords results in a foetus... Llp case Comments ≈ 7 Comments with a dyskinetic form of cerebral palsy v Lanarkshire Health Board Respondent! Top Tips to Score 70 and above in Online law Exams was likely she would a! N 1 ) [ 71 ] - [ 72 ] ( Lord Steyn ) Tallis Hippocratic. System whereby some patients understand what the doctor says and others do not £5m from Lanarkshire. Circumstances to which they apply a larger foetus during labour the baby suffered injection!