Consent post-Montgomery

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Following the Supreme Court’s restatement of the law on consent, we look at the outcome of three cases decided in the aftermath of Montgomery and consider the practical implications for medical practitioners.

On 11 March 2015 the Supreme Court handed down the landmark decision of Montgomery v Lanarkshire Health Board. Although some commentators have opined that this represents a shift in the law of informed consent, in truth it is a restatement of the law as it has been applied for some time, and is now clearly part of healthcare law jurisprudence. In Montgomery it was held that the risk of shoulder dystocia should have been discussed with Montgomery (a pregnant patient), despite that risk being less than 10 per cent, as should the alternative of birth by caesarean section.

Following Montgomery, it is the doctor’s duty to take reasonable care to ensure that a patient is aware of any material risk involved in any recommended treatment and of any reasonable alternative treatments. The test for a material risk is whether in the circumstances of a 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. This is fact dependent and sensitive to the characteristics of the patient. The outcome of this case supports the GMC guidance on consent issued in 2008. The key question now is how will the court apply Montgomery in the future. We look at three cases decided since Montgomery to consider its application.

Mrs A v East Kent Hospitals University NHS Foundation Trust

This case was heard on 16-20 March 2015. Mrs A’s baby (B) was diagnosed with very rare chromosomal abnormality shortly after birth resulting in, amongst other manifestations, comprehension difficulties. Mr and Mrs A had been trying for a baby, before undertaking IVF. After the first round of IVF failed, Mr A undertook a DNA fragmentation and sperm aneuploidy (presence of abnormal number of chromosomes in a cell) test on chromosomes 13,18 and 21 which returned clear results. The report contained a warning however that only 3 of 22 autosomes had been examined and therefore a normal result did not preclude increased aneuploidy rates for other chromosomes.

Further testing following the birth of B revealed that although Mr A had a normal number of chromosomes, part of chromosome 4 had broken and attached itself to chromosome 11, and vice versa, creating a balanced translocation. The second round of IVF was successful and the subsequent tests confirmed that B was not at an increased risk of genetic abnormality - the risk of Down’s syndrome was 1:1753. However, repeated scans and consultations revealed measurements indicating that the baby was small and doctors worried the baby might be born early. Doctors were unsure of the underlying cause but chromosomal abnormality was ruled out.

After birth, when it became clear that B may have significant learning issues, Mrs A said that if, during her pregnancy, she had been told that there was a possibility of B being born disabled she would not have proceeded with the pregnancy. However, evidence also showed that Mrs A was prepared to accept a background risk of having a disabled child, having accepted that risk in relation to the Downs syndrome test. Applying Montgomery, it was held that there was no evidence to show that there was a material risk to which Mrs A should have been alerted. Interestingly, the judge commented that if the risk of a disabled child had been 1-3 per cent or more, then his finding would have differed. However, in his judgement, the evidence showed the risk to be 1 in 1,000 and there was no reason to suspect that Mrs A, or a reasonable patient in the position of Mrs A would have attached any significance to a risk of this level.

This case is therefore of some reassurance for practitioners in that they are still not necessarily required to advise on negligible risks. It is noteworthy that the judge considered a 1 per cent risk to be material, and although the doctrine established by Montgomery is patient–centric, Mrs A provides practitioners with guidance on the definition and/or legal application of material risk.

Spencer v Hillingdon Hospital NHS Trust

This case was heard on 23-25 March 2015. Mr Spencer underwent surgery for a right inguinal repair but he was not warned of the risk that he might suffer deep vein thrombosis or a pulmonary embolism as a consequence of his surgery. This was despite the fact that Mr Spencer had pneumatic boots placed on both legs prior to surgery - a device intended to reduce the risk of a patient suffering from deep vein thrombosis. On discharge from hospital he was advised to phone the hospital if he had any problems. Mr Spencer rung the hospital and returned to his GP after experiencing certain symptoms but he failed to mention pain in his calves as he did not attribute these symptoms to his surgery. He subsequently suffered two acute episodes of pulmonary embolism.

The judge held that the hospital had failed Mr Spencer by not warning him of the risk or signs of deep vein thrombosis and pulmonary embolism. This decision was arrived at partly because, since the hospital had supplied him with boots to lower the risk, it was clearly aware of such a risk. This risk was considered something that the ordinary sensible patient would have expected to be informed of, especially due to the risk of death from these conditions. The court discussed Mr Spencer’s failure to highlight his symptoms to the hospital but decided that this was insufficient to amount to contributory negligence. This is therefore an example of how the court appears to be taking a common sense approach to cases.

Jones v Royal Wolverhampton Hospitals NHS Trust

In this case, decided on 26 June 2015, the court allowed amendments to particulars of claim following Montgomery. The claimant argued that, although prior to Montgomery the nurse’s failure to warn would not have been negligent, since Montgomery any reasonable nurse would have told her of the risk of stroke if she did not have anti-coagulation treatment immediately. It was held that it would be contrary to the overriding objective if the claimant were not allowed to amend the particulars. This is noteworthy as it suggests that other applications will be treated similarly, irrespective of the date of the alleged negligence. Medical practitioners and their lawyers should therefore assess all current cases for any risks that Montgomery may be pleaded against them.

Conclusion

Montgomery has changed the legal landscape regarding informed consent. The cases since the decision have confirmed Montgomery. However, pointers can be derived from each decision. Jones demonstrates that the court is happy for claims to be amended post-Montgomery and this will need to be considered when dealing with cases that commenced pre-Montgomery; Mrs A clarified the scope of "material risk" and this is a positive step towards containing the duty on a doctor to a manageable extent. Finally, Spencer, although confirming Montgomery in its entirety, considered the responsibility of the patient in alerting practitioners to symptoms or circumstances they deem material. It is questionable whether a higher obligation should be placed on patients to disclose information and actively enquire as to risks involved in treatment given the patient/doctor relationship is becoming increasingly discursive.
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