The Montgomery case in 2015 was a landmark for informed consent in the UK. New decision confirms the end of the Bolam test in consent cases. The claimant was a woman of small stature and a diabetic under the care of a doctor during her pregnancy and labour. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. [49] This is entirely logical considering that the aim of the law is to ensure the patient makes an informed choice which cannot be achieved in these circumstances. For some, Montgomery represents a defining moment in medical law which marks the end of medical paternalism. [2] A case recognised as ‘perpetuating medical paternalism’. The decision demonstrates a lack of expertise in dealing with specific clinical issues and misrepresents professional guidance. Judgment details. The test of materiality 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. The claimant sought damages from the health board for negligence on the part of the doctor for failing to advise her on the risk of shoulder dystocia. 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 C failed to advise M that there was a 9-10% chance that the baby would suffer shoulder dystocia during labour as in C’s opinion the risk of complications as a result of dystocia was small. The Supreme Court allowed M’s appeal and found that C had breached the duty of care. The aim of this paper has been to explore the extent to which the decision in Montgomery has signalled the end of paternalism in medical practice. 2015. MONTGOMERY (Appellant) V LANARKSHIRE HEALTH BOARD (Respondent) & GENERAL MEDICAL COUNCIL (Intervener) [2015] UKSC 11 | Case Library | 12 King's … Medical professionals have not been completely stripped of the ability to influence and decide on what is best for the patient. Paternalism has been dealt a blow by the case but it still survives to an extent. 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). 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. UKSC 2013/0136. (3d) 1. [24] It also extends to other areas such as sports law in relation to the risk of cardiac problems in professional football where there is ‘no place for paternalism’[25] where a player should be advised of real risks to health and life. Case Comment: Montgomery v Lanarkshire Health Board [2015] UKSC 11. [48] This is one area where a doctor has an amount of discretion. The case changed the Bolam test to a greater test in medical negligence by introducing the general duty to attempt the disclosure of risks.[1]. The decision demonstrates a lack of expertise in dealing with specific clinical issues and misrepresents professional guidance. 2015. [36] Tracey Elliot, ‘A Break With the Past? Montgomery v Lanarkshire Health Board A similar approach has been adopted in the UK with the landmark Supreme Court judgment in Montgomery, which arguably goes even further than the current Irish law in relation to consent. Montgomery v Lanarkshire Health Board [2015] UKSC 11’ (2015) 23 Medical Law Review 455; J Montgomery et al, ‘Montgomery on informed consent: an inexpert decision?’ (2016) 42 Medical Ethics 89. The practical effect is that patients with full … [8] 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. Montgomery v Lanarkshire HB is a deeply troubling decision when read closely. Here, the learned judge emphasised that it was a fundamental human right that a patient should make their own decisions in relation to medical treatment. The tribunal consisted of 7 SC Judges ((Lords Neuberger (P); Lady Hale (DP); Lords Keer and 1Reed ; Lords Hodge, Wilson and Clarke). [39] It also accords with the General Medical Council which endorses ‘the replacement of paternalism with a model based on partnership between doctor and patient.’[40] It will also have repercussions throughout medical practice. 86. Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. [41], However, ‘the idea of a fully autonomous patient making choices completely independent of the doctor’s input does not reflect the complex reality of medical decision making, nor does the caricature of a paternalistic doctor riding roughshod over patients’ objections.’[42] The doctor is still a core, if not the core, cog in the machinery of the decision-making process. Montgomery represents a shift in risk disclosure where it is not caught by exceptions. The lower court rejected M’s argument. The approach in Canada is categorised as one that preserves patient autonomy. Mrs Montgomery was a primagravida with type I diabetes who booked under consultant‐led care in 1999. In Montgomery v Lanarkshire Health Board, the plaintiff was a pregnant woman of short stature who suffered from injection dependent diabetes. 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. [45] Tracey Elliot, ‘A Break with the Past? [31], Many commentators have categorised the case as a victory for personal autonomy and the demise of paternalism. 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. However, it should also be noted that the individualised approach might produce unwanted effects. 27 Friday Mar 2015. 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. Mrs Montgomery was around five feet tall, and was also diabetic, which often results in a larger foetus. [26] The idea that the doctor knows best has been engrained into the field of medicine for centuries. The exceptions show that paternalism still endures in the circumstances to which they apply. Her baby, Sam, was born with serious disabilities after … Montgomery v Lanarkshire HB is a deeply troubling decision when read closely. The Montgomery case in 2015 was a landmark for informed consent in the UK. 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. This increases the risk of shoulder dystocia during delivery by 10%. [5] This harped back to the days of Lord Denning in Hatcher v Black[6] where the learned judge excused a doctor from lying to a patient as it was in their own interests. 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. Further, if medical paternalism means that the ‘doctor knows best’ then these exceptions are entirely justified when looked through that lens as the patient is certainly not in a position to know best. 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 … Department of Health (DoH), The NHS Constitution: the NHS belongs to us all (London DH Publications, March 2013).GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008). [42] Sarah Chan et al, ‘Montgomery and Informed Consent: Where are We Now?’ (2017) The British Medical Journal 357. As a result of an occlusion of the umbilical cord caused by shoulder dystocia, Sam's brain was starved of oxygen for some 12 minutes. The Court of Session concluded that the test for breach of duty of care should be decided by reference to expert medical opinion and applying the Bolam test. 84. In Montgomery, the Supreme Court emphasised and preferred the dissenting judgment of Lord Scarman in Sidaway. This decision was an overruling of a previous decision made by the House of Lords. Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge. This decision was an overruling of a previous decision made by the House of Lords. [37] Emily Jackson, Medical Law: Text, Cases and Materials (4th edn, Oxford University Press 2016) 210. Appellant Respondent James Badenoch QC Rory Anderson QC Colin J MacAulay QC Neil R Mackenzie Lauren Sutherland (Instructed … NHS Lanarkshire - improving the health of North and South Lanarkshire Montgomery v Lanarkshire Health Board [2015] UKSC 11’ (2015) 23 Medical Law Review 455, Johnston L, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar: Part 1’ (2015) 18 Scots Law Times 81, Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Professional Negligence 128, Miola J, ‘On the Materiality of Risk: Paper Tigers and Panaceas’ (2009) 17 Medical Law Review 76, McGrat CP, ‘Trust Me, I’m a Patient…Disclosure Standards and the Patient’s Right to Decide’ (2015) 74(2) Cambridge Law Journal 211, Mchale J, ‘Innovation, informed consent, health research and the Supreme Court: Montgomery v Lanarkshire – a brave new world?’ (2017) 12(4) Health Economics, Policy and Law 435, Montgomery J et al, ‘Montgomery on informed consent: an inexpert decision?’ (2016) 42 Medical Ethics 89, Reed E, ‘Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient’ (2015) 19 Edinburgh Law Review 360, Tavares N, Webster (a Child) v Burton Hospitals NHS Foundation (2017) 2 Journal of Personal Injury C93, Vick L, ‘Sports Injuries and the Liability of Doctor and Club’ (2015) Coventry law Journal 324, Vickery S, ‘Revisiting Consent: Communication of Risks, Medical Paternalism Versus Patient Autonomy’ (2015) 20(1) Coventry Law Journal 40, Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal recognition before the law (2014). 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. in the cause. Montgomery v Lanarkshire Health Board [2015] 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. 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. [26] Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal recognition before the law (2014) [36]. For some, Montgomery represents a defining moment in medical law which marks the … In Montgomery v Lanarkshire Health Board, (2015) UKSC 11, the Supreme Court of the United Kingdom has caused a paradigm shift on the scope of informed consent. 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 … [16] Montgomery (n 1) [71]-[72] (Lord Kerr). . [16] Lord Kerr concluded that modern society pointed ‘away from a model of the relationship between the doctor and the patient based upon medical paternalism ’. Two years on, Sarah Chan and colleagues discuss the consequences for practising doctors The Montgomery v Lanarkshire case of March 20151 drew fresh attention to informed consent. In addition, a doctor does not need to disclose risks where there is a medical necessity e.g. She was noted to have a large baby at her 36‐week scan and was induced at 38 +5 weeks of gestation. Further, M asserted she should have been told that she had an option of having a caesarean section. [35] According to Elliot the decision marks a legal and medical shift ‘away from a model of the relationship between the doctor and patient based upon medical paternalism, to one which recognises and needs to be respectful of the autonomy and dignity of patients’. [53] This is echoed by language in the National Health Service Consultation which states that ‘[y]ou [the patient] have the right to make choices about the services commissioned by NHS bodies and to information to support these choices’. Although she expressed concerns about the size of the baby, the risk of shoulder dystocia (9–10% in diabetic mothers 3) was never discussed with her. Here the role of the doctor is key if the patient cannot understand. 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. The stimulus statement implies that the case has led to end of paternalism in all clinical practice. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Judgment date. [35] Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia. The Court revisited Sidaway v Board of Governors of the Bethlem Royal Hospital. [22] In the alternative, it is a risk that a doctor did or reasonably should know that a patient would attach significance to such risk.[23]. Patients were more willing to challenge clinical judgment. [43] A doctor cannot simply provide medical literature and get a signature to show consent[44] – the approach needs to be more holistic.[45]. [31] GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008). [37], 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’. Emily Dorotheou, Olswang LLP Case Comments ≈ 7 COMMENTS. [24]Carmen Draghici, ‘The blanket ban on assisted suicide: between moral paternalism and utilitarian justice’ [2015] 3 European Human Rights Law Review 286. Neutral citation number [2015] UKSC 11. Justices. In ruling in favour of Nadine Montgomery in her claim of negligence against Lanarkshire Health Board, the Supreme Court changed the law in matters of informed consent. 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