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If you were not fully involved in decision making about your medical treatment, it could be easier to bring a claim for compensation as a result of recent changes to the law of consent.

The Supreme Court has reviewed the duty a doctor owes to a patient in relation to advice about treatment in a case called Montgomery v Lanarkshire Health Board.

This was an obstetric case where the delivery was complicated by shoulder dystocia ie the baby’s shoulders were not able to pass without intervention. The resulting delay caused the baby to be deprived of oxygen and to develop cerebral palsy.

It was accepted that Mrs Montgomery was not told that her diabetes meant that there was a 9-10% risk of shoulder dystocia occurring or that this risk could be eliminated if she delivered by c-section.

She argued that these omissions meant that she was given inadequate information about her options and that she would have chosen to deliver by c-section had she been told of the matters set out above.

The case was defended on the basis that if every diabetic mother was told of the risk of shoulder dystocia, they would all opt for a c-section when it is not in their best interests to deliver by this method. It was also part of the defence case that the actual risk of harm was much lower than 9-10% as most cases of shoulder dystocia do not lead to injury.

The existing law on consent was broadly as follows: a doctor’s omission to warn of a risk was defensible as long as other doctors, acting reasonably, would have made the same decision. There were exceptions where the proposed treatment involved a substantial risk of grave adverse consequences or where the patient had questioned the doctor about a specific risk they faced.

In effect, subject to these exceptions, it was up to the doctor to decide what information should be given to the patient about the proposed treatment and alternatives, and if other doctors would have made the same decision, any claim based on consent was likely to fail.

The lower courts applied these principles to Mrs Montgomery’s case and found that the doctor’s decision to withhold information about the risk of shoulder dystocia would have been supported by other doctors acting reasonably. Accordingly, her claim was dismissed.

The issues raised were then considered by the Supreme Court.

In its judgment, the Supreme Court recognised that in recent years, there has been an increasing recognition of patients’ ability to understand complex medical information and of their wish to participate in decisions about their treatment.

It noted that these matters were reflected in the 2013 GMC publication titled Good Medical Practices that encourages doctors to give patients the information they need to reach decisions with their doctors about their treatment and care.

In order to reflect these changes in attitudes, the Supreme Court abandoned the traditional approach to determining liability in consent cases based on what other doctors would have done and set out a new approach, which is as follows:

  1. A patient is entitled to decide which, if any, of the available forms of treatment to undergo.
  2. The doctor is under a duty to take care to ensure that the patient is aware of all material risks of the recommended treatment and of any alternative treatments.
  3. A risk is a material risk if a person in the patient’s position would attach significance to the risk.
  4. The doctor may withhold information if its disclosure would be seriously detrimental to the patient’s health, or if the patient requires emergency treatment.

In other words, to avoid a finding of negligence, the doctor must explain why they consider that one of the available treatment options is medically preferable to the others, having taken care to ensure that the patient is aware of the considerations for and against each of them.

Applying these principles to Mrs Montgomery’s case, the Supreme Court found that she should have been told of the 9-10% risk of shoulder dystocia and that the doctor was not entitled to withhold information on the basis that a c-section would be detrimental.

The Montgomery decision has provoked much reaction in the legal and medical communities. Some predict a significant increase in claims based on consent.
In my opinion, whilst it is right to say that the bar to proving negligence in consent cases has been lowered and whilst in the past it was rare to bring a case based only on consent, I suspect the effect of Montgomery will be that we see only a modest increase in numbers of consent cases over the next few years or so.

I do think, however, that there is real potential in using Montgomery in obstetric cases where the chance to deliver by c-section was not taken. Sadly, we all see many instances of mothers and babies being injured during labour and it may well be that cases that would otherwise have failed might now succeed if it can be shown that a c-section should have been offered.

Outside obstetrics, I am not convinced that Montgomery will lead to the significant increase in case numbers that others predict and I say this for two reasons:

First, whilst it is true that Montgomery finally brings to an end the concept of “doctor knows best,” perhaps it simply recognises changes to medical practice that have already taken place? In other words, it may be the case that the decision brings the law up to date with the reality of modern medical practice rather than setting a new standard for the medical profession to work towards if they are to avoid a significant increase in claims.

Second, for a claim to succeed, the patient must do more than show that the doctor has failed to provide adequate advice and information: the patient must also show that they would have chosen alternative treatment, and further, that the injury they have suffered would have been avoided had they done so. Mrs Montgomery was able to prove this by showing that she would have had a c-section. However, proving this is not straight forward and the courts are well aware of patients’ evidence given after the event about the choices they would have made being coloured by the benefit of hindsight.

At Pryers, we deal with more than 400 new enquiries a month and we are not seeing any increase in people coming to us with complaints about consent. This is not surprising as the Montgomery decision has received no publicity outside the medical and legal communities.

Nevertheless, as clinical negligence practitioners, we must bear this important case in mind when considering all new enquiries as there may be the possibility of bringing a claim based on consent in addition to, or instead of, a case based on the issue that brought the client to us in the first place.

Further, we are reviewing our existing cases to check what advice our client was given as it may be that we can add an allegation based on consent to the existing allegations that have been put forward. Also, it may be possible to salvage cases that are likely to fail by introducing allegations based on consent.

Whilst the effect of Montgomery may not be as dramatic as some predict, it is a vital decision that all clinical negligence practitioners need to be aware of.

The message to patients and their families is that you should seek specialist advice promptly if you are concerned that you or a loved one was not fully involved in decision making about medical treatment.

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