14th April 2015

Although increasingly under fire it had long been established that any examination of the adequacy of a doctor’s advice or warnings about treatment to a patient is assessed according to the standards of what a reasonable medical professional in the same position would have done.

Following a Supreme Court decision in which 7 law Lords sat (Montgomery v Lanarkshire Health Board 2015 UKSC 11 (11th March 2015) it is now unequivocally the case that such an approach should not be followed where consent is an issue in a medical case.  The court held in a case relating to the information to be provided to a woman giving birth that she is entitled to information about **“any material risk”** in order to make an autonomous decision about how to give birth.  The medical evidence in the case of Mrs Montgomery agreed that prior to giving birth there was a risk of shoulder dystocia occurring during a normal vaginal delivery of in the region of 9-10% and this was because she was a diabetic mother.  She was not told of this risk as in the opinion of the Defendant doctors the possibility of that risk causing a serious problem for the baby was very small.

Mrs Montgomery went on to deliver naturally and although shoulder dystocia did not occur the baby did suffer an insult at the time of birth which regrettably led to injury in the form of cerebral palsy.  Mrs Montgomery argued that had she been told about the risk of the shoulder dystocia she would have elected for a caesarean section which, it was shown on the medical evidence, would have avoided the cerebral palsy injury.

The courts have long since been unhappy with the established case law in this area and the decision in the case of Mrs Montgomery brings English and Scottish law into line with that of the United States and other common law jurisdictions by establishing that the duty upon doctors is now for them 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.

Therefore the question now is would an adult person of sound mind attach significance to the risk that the doctor is aware of, or should be aware of.   This is a step away from the traditional approach and is a recognition of a patient’s right to autonomy and fully informed choice.

Many feel that the approach on consent to treatment now confirmed in the case of Mrs Montgomery more accurately reflects the modern doctor/patient relationship and far from potentially increasing litigation in medical claims may well reduce it as proper disclosure of risks should protect a doctor from the risk of litigation as patients should now be in possession of all material facts and therefore are able to take responsibility for their own decisions.