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Assess the significance of Montgomery v Lanarkshire Health Board [2015] AC 1430 for English law?
Is the decision bound to have a different significance for Scots law?
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Assess the significance of Montgomery v Lanarkshire Health Board [2015] AC 1430 for English law? Is the decision bound to have a different significance for Scots law?

Introduction Montgomery v Lanarkshire Health Board is described by some medical professionals as a landmark case and arguably one of the most important cases in 30 years for informed consent.1 The significance of the case is that is adopts a test of materiality departing away from the long established but disregarded Bolam test and aligns the General Medical Councils 2008 guidelines with the law on informed consent. The case was declined by lower Scottish courts and finally appealed in the Supreme court, which outlines the difference in the application of tests in both jurisdictions. The Case Facts: Montgomery v Lanarkshire Health Board.2 The claimant Nadine Montgomery suffered complication during the delivery of her baby in 1999, which resulted in her son being born with cerebral palsy. The mother sought damages against the Doctor who was responsible for her prenatal care and labour. The claimant was diabetic, as a result she was likely to have a larger baby; she was of an increased risk of complication during delivery; particularly shoulder dystocia where the baby’s shoulders are too big to pass through the pelvis. The baby suffered these complications, as a result he was starved of oxygen for 12 minutes which caused cerebral palsy. The claimant argued management of labour and informed consent on the basis that no ordinary competent obstetrician acting with the reasonable care and skill would have undertaken the same management of the labour, and the obstetrician failed to disclose the risks or obtain 1 S Chan, 'Montgomery and informed consent: where are we now?' (BMJ, 12 May 2017) accessed 3 March 2020 22015 AC 1430, referenced hereon as “Montgomery”

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informed consent. The case travelled through the Scottish courts based on medical negligence however a further issue of consent was lodged on appeal to the supreme court, later dropping the negligence issue3. The Law before Montgomery: The Bolam test. Negligence law prior to 2015 when Montgomery was heard followed the decision in Bolam v Friern Barnet HMC4 in negligence, the case concerned a patient that consented to electrical therapy for a mental health condition. The claimant argued that the doctors administering the treatment was negligent as he was not given any relaxant or his body secured; as a result, his body convulsed involuntarily which resulted in injury. To determine the Tort of negligence it was necessary to prove that the doctor failed to act in a way that a reasonable professional in their position would; The action failed for the claimant as the use of relaxants and restraints were not commonly used; however Lord McNair J established the Bolam test for subsequent cases. The test emphasised that a professional would not be in breach of duty of care if they act in a way which is accepted; in accordance with practices by a reasonable body of professional with the same expertise. In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital5; The test was adopted as the correct practice to determine negligence. Sidaway and Montgomery. The courts considered the Sidaway judgement in Montgomery, in Sidaway it was decided that any breach of a doctors duty if care in relation to diagnosis, treatment or advice should be decided in accordance to the Bolam test and that there is no obligation to provide patients

3 A Smith, 'Montgomery and implications for clinical practice' [2017] 124(8) An International Journal of Obstetrics and Gynaecology 1148 - 115 4 [1957] 1 WLR 582 5 [1985] AC 871

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with information about risks they had not requested, The court diverting was of the view that: “if (1) the patient suffers damage, (2) as a result of an undisclosed risk, (3) which would have been disclosed by a doctor exercising reasonable care to respect her patient's right to decide whether to incur the risk, and (4) the patient would have avoided the injury if the risk had been disclosed, then the patient will in principle have a cause of action based on negligence”6 To courts also considered the importance of the patients own views of procedures and how the varying diversity would render it impossible for a doctor to form an objective medical view of the patient’s opinions and apply them to individual cases, disguising it as the right clinical judgement7. The court concluded that a doctor is under a duty to take reasonable care to ensure the patient is aware of any material risks, involved in any recommended treatment and all alternatives; thus, the test of materiality is applicable. The test applies where a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is aware that there is likelihood of the patient attaching significance to the risk8. Redefining The standard for informed consent and disclosure? The significance of Montgomery is it establishes that a patient should be fully informed of every aspect of an illness or procedure. On analysis the courts found that in this case there was a substantial risk that should have been disclosed.9 “Dr McLellan's own evidence, that she was aware that the risk … was likely to affect the decision of a patient in Mrs Montgomery's position… her evidence indicates that it was her 6 Montgomery v Lanarkshire Health Board [2015] AC 1430 (SC) at 44 7 Ibid at 45 8 Ibid at 87 9 Ibid 94

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policy to withhold information about the risk…from her patients because they would otherwise request caesarean sections10” Dr McLellan’s policy was argued under the therapeutic exception; medical paternalism where a doctor can withhold information regarding procedures or illnesses if they deem necessary11, however the court made clear the exception should not be abused: “therapeutic exception is not intended to enable doctors to prevent their patients from taking an informed decision. Rather, it is the doctor's responsibility to explain to her patient why she considers that one of the available treatment options is medically preferable to the others, having taken care to ensure that her patient is aware of the considerations for and against each of them”12. The courts also established causation in the fact that if Montgomery had been properly informed the situation could have been different, the focus of causation was not to be based on the reaction of the effect of the risk but the risk itself: “had she advised Mrs Montgomery of the risk … and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, Mrs Montgomery would probably have elected to be delivered of her baby by caesarean section. It is not in dispute that the baby would then have been born unharmed”13. The court concluded that the Dr McLellan had diverted from a purely professional medical opinion of Montgomery’s “best interests” and had replaced it with a moral judgement of the situation; thus, in this circumstance the Bolam test was inappropriate and the risks should have been disclosed.14 10 Ibid 11 Emma Cave, 'The ill-informed: Consent to medical treatment and the therapeutic exception' [2017] 46(2) Common Law World Review 140 - 168 12 FN6 at 95 13 Ibid at 104 14 Ibid at 115

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The case effectively cast aside the Bolam test as affirmed in Sidaway15 in the issue of consent and replaced it with the materiality test as adopted from the Australian case Rogers v Whitaker.16 Although Montgomery has changed the legal position, the principle of information sharing to this level has been in place since 2008 through the GMC’s Consent: doctors and patients making decisions together (2009)17. The new requirement The Medical Professional has a duty to take reasonable care to ensure patients of sound mind18 are aware of any material risks involved in any recommended or alternative treatments. A risk is material if in the circumstances a reasonable person in the patient’s position would likely attach significance to the risk, or if the patient has attached significance to a risk. The patient must understand the alternative treatments available as well as any risks, the seriousness of those risks and any benefits of the proposed treatments. Informed consent must be obtained on the basis that the information available to the patient is simply understood, not overwhelmingly technical. A signed consent form does not evidence full informed consent has been given. Exceptions to the rule include the therapeutic exemption and circumstance of necessity where the treatment is required in the patient’s best interests, but consent cannot be obtained because the patient does not have the capacity and a proxy is not available19. 15 Fn 5 16 (1992) 175 CLR 479, at 490 in Fn 10 17 The general medical council, 'Consent: patients and doctors making decisions together' (GMC, 2 June 2008) accessed 5 March 2020 18 England – The Mental capacity Act 2005, Scotland - Adults with Incapacity (Scotland) Act 2000 19 Medical protection, 'Consent - The basics - England' (Medical ProtectionOrg, 15/05/2015) accessed 02 March 2020

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The significance in Scotland The decision of the case holds the same significance as it does in England. The Montgomery case was appealed to all available Scottish courts who adopted the same view in favour of Sidaway and the Bolam test. The only additional significance the case hold for Scotland is that there is now clarity and guidance in the appropriate test to adopt to any retrospective and future cases that may be heard. Conclusion The Montgomery case decided that the Bolam test was no longer appropriate in the consideration of cases of consent; it advanced a new test of materiality for consent derived from comparative law in place of the long established Bolam test. The significance of this was that it set out that patients must now be informed of all the information regarding illness and procedures to allow the patient to make a fully informed decision; bringing the law in line with the GMC’s Guidance. The case gave clarity on how and where medical exceptions apply and operate; reaffirming the correct position for all jurisdictions of the United Kingdom on the topic of informed consent and medical negligence.

Bibliography. Articles Medical protection, 'New judgement on patient consent' (Medical Protection.org, 30/06/2017) accessed 02 March 2020

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Medical Protection, 'Consent - The basics - England' (Medical ProtectionOrg, 15/05/2015) accessed 02 March 2020

Medical Protection, 'Consent - The basics - Scotland' (Medical ProtectionOrg, 15/05/2015) accessed 02 March 2020

S Chan, 'Montgomery and informed consent: where are we now?' (BMJ, 12 May 2017) accessed 3 March 2020

Chan, SW, Tulloch, E, Cooper, ES, Smith, A, Wojcik, W & Norman, JE 2017, 'Montgomery and informed consent: where are we now?', BMJ, pp. j2224. https://doi.org/10.1136/bmj.j2224

The MDU, 'Montgomery and informed consent' (MDU, 7 August 2018) accessed 3 March 2020

Brown Jacobson, 'Montgomery v Lanarkshire Health Board (Scotland)' (Health Law by Brown Jacobson, 16 March 2016) accessed 4 March 2020

Scottish legal news, 'Montgomery in the Supreme Court: a new legal test for consent to medical treatment' (ScottishLegalcom, 12 March 2015) accessed 4 March 2020

GmC, 'Consent: patients and doctors making decisions together' (Gmc-ukorg, 2 June 2008) acce ssed 2 March 2020

The Scottish executive, 'A Good Practice Guide on Consent for Health Professionals in NHS Scotland ' (SE Health Department NHS, MEL, 16 June 2016) accessed 2 March 2020 7

Emily Dorotheou, 'Case Comment: Montgomery v Lanarkshire Health Board [2015] UKSC 11' (UKSCBlog, 27 March 2015) accessed 4 March 2020 A Smith, 'Montgomery and implications for clinical practice' [2017] 124(8) An International Journal of Obstetrics and Gynaecology 1148 – 115

Cases Montgomery v Lanarkshire Health Board [2015] AC 1430 (SC) (Lord Neuberger, Baroness Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge) Bolam v Frierm Barnet HMC [1957] 1 WLR 582 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 Rogers v Whitaker (1992) 175 CLR 479

Statutes Mental Capacity Act 2005 Adults with Incapacity (Scotland) Act 2000

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