Consent – the impact of Montgomery v Lanarkshire Health Board

In March 2015 the Supreme Court issued a landmark decision in the field of medical negligence relevant to the issue of consent. The legal consequence of this case is that the paradigm is said to have shifted to a more patient focussed approach to the question of whether consent has been obtained.

Within this decision the Supreme Court have made it clear that any healthcare professional prior to embarking  upon a treatment plan must make the patient aware of any risk, benefits and alternatives that may exist that a reasonable patient would think were material.

The shift is therefore away from the doctor determining what they consider is material to a situation where the patient retains autonomy about treatment decisions from a fully informed viewpoint.

The decision is viewed as a landmark ruling from a Scottish (and indeed UK wide) perspective; overruling case law that has been approved and relied upon for a long time. However, it is far from ground-breaking further afield where other jurisdictions adopted such an approach for a significant period of time. Indeed the Supreme Court also highlighted (with the assistance of the intervener) that the guidance issued in the UK by the GMC has for a long time placed the focus on the prudent patient rather than the reasonable doctor.

The right to self-determination and ensuring the patient understands the consequences and risks of each particular treatment option means it is incumbent upon all healthcare professionals to take reasonable care to ensure patients are aware of all risks material to them specifically.

The Supreme Court stated at paragraph 87 “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, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the 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.”

The Supreme Court went on to say that rather than determining materiality on the basis of percentages the factors that must be taken into consideration include (i) the nature of the risk, (ii) the effect which its occurrence would have upon the life of the patient, (iii) the importance to the patient of the benefits sought to be achieved by the treatment, (iv) the alternatives available, and (v) the risks involved in those alternatives.

The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient. The only exception to this is if the doctor reasonably considers disclosure of a risk would “be seriously detrimental to the patient’s health” or in circumstances of necessity such as where urgent treatment is required but the patient is unconscious or otherwise unable to make a decision.

Although the facts of Montgomery related to an obstetric injury (shoulder dystocia) during the course of a delivery that resulted in cerebral palsy it is clear the decision has universal application throughout the healthcare sector and requires to be fully reflected in practice.

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