Montgomery: Upheaval or evolution?

The Montgomery decision should be welcomed as
a clarification of the law of consent and as a landmark as significant to the present day as Bolam was in 1957.
However, should this ruling
be considered an upheaval,
or nothing more than the natural evolution of the law
to reflect societal attitudes in the present day?

Bolam [1957], Sidaway [1985], and Montgomery [2015] are by no means the only cases in the history and evolution of this point of law, but they are landmarks in its development.

In Bolam, the question was, first, whether the professional had acted ‘in accordance with a practice accepted as proper by a responsible body of medical men’, and, second, whether non-disclosure of a risk was negligent and ‘the plaintiff would not have consented to the treatment if they had been warned of the risks’.

Bolam was a reflection of
the ‘doctor knows best’ attitude of the time; medically trained professionals were considered gatekeepers of this knowledge, who could impart only what they considered necessary to their patient.

By the time of Sidaway, the principle of Bolam survived,
but by the barest margin.

The rationale that ‘a patient may make an unbalanced judgement because he is deprived of adequate information’ yet ‘may also
make an unbalanced judgment if he is provided with too much information’ is an apt summation of the unfinished progression away from the approach of Bolam.

Lord Diplock’s well-known summation, that deciding on the risk to the patient ‘is as much an exercise of professional skill and judgment as any other part of the doctor’s duty of care’, reflected that whether it be in terms of diagnosis, treatment, or advice, the Bolam test should still be applied.

Sidaway formed the halfway house as the law progressed towards Montgomery and the acceptance of patients as adults with the capacity to make fully informed decisions.

Material risk

The court, in coming to the Montgomery decision, was united in the conclusion that the Bolam test does not apply to advice about medical treatment, ruling: ‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo... 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.’

The question of disclosure of risk is no longer solely the decision of the doctor, and it is no longer for the doctor to decide what level of importance their patient will assign to any risk.

This will require the doctor
to properly engage in dialogue
with the patient in order to
advise them.

The test of what is ‘material’ becomes whether the doctor should be reasonably aware that their patient would find the risk significant, and whether the reasonable patient would be likely to think the risk significant.

In an era of technology, where a wealth of information is available almost instantly, the notion that the patient is an ill-informed bystander to the opinion of their doctor is over. Save for ‘the therapeutic exception’ (where disclosure of the risk would be detrimental to the patients’ health), the general rule now stands that the patient must be able to make an informed decision about the treatment they receive.

Medical profession

So, is this really ‘upheaval’?

If we take some of the components of the decision, we see that the medical profession is already heading where the law has now followed. When considering ‘any risks’, the General Medical Council guidance document ‘Consent: patients and doctors making decisions together’ suggests: ‘The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment …The patient decides whether to accept any of the options and, if so, which one.’

As for the need to ‘engage in dialogue’ with patients, the ‘Good medical practice’ guidance advises doctors: ‘Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decisions with you about their treatment and care.’

The Supreme Court has evolved the law on consent to reflect society, and, for medical practice, has safeguarded the practitioner and patient alike.

The court has not dramatically overthrown the status quo and usual practice, but has codified and clarified a change in legal precedent and societal development so gradual that
it has been progressing by incremental steps over half
a century. SJ

Chris Neale is a litigation assistant at Bott and Co

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