A medical practitioner's role as adviser prior to treatment is crucial in providing the basis on which the patient consents to a procedure or not. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, the House of Lords confirmed the applicability of the “Bolam” test, historically the province of treatment cases, to cases concerning the disclosure of risks. By a majority decision, although without a clear ratio, the question of what risks a practitioner should disclose was regarded as matter for clinical judgment. Where a practitioner could demonstrate that he had disclosed an amount of information that was in keeping with the practice of a responsible body of medical opinion, this would defeat a claim in negligence. Lord Bridge provided two exceptions: first where there was a substantial risk of grave adverse consequences, an example of which he gave as the 10% risk of a stroke, and, secondly, where the patient had specifically questioned the practitioner. In both circumstances, the risk ought to be disclosed regardless of settled medical practice. Lord Scarman dissented on the basis that the analytical starting point in disclosure cases was the patient's right to know what risks they would be subjected to; this was not a matter for clinical judgment.
The continued categorisation of disclosure cases alongside treatment cases was the subject of the Supreme Court's decision in Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11; [2015] 2 W.L.R. 768. Nadine Montgomery was a diabetic of small stature who suffered complications during vaginal delivery of her son, Sam. Her consultant, Dr. McLellan, had not disclosed the higher risk of complications, such as shoulder dystocia, involved in vaginal delivery for someone in that condition due to the foetus's increased size. Such a risk eventuated and Sam was born severely disabled. Montgomery argued that, had she been so informed, she would have opted for a caesarean section.
Montgomery based her argument on the decision of the Court of Appeal, delivered by Lord Woolf M.R., in Pearce v United Bristol Healthcare NHS Trust [1999] P.I.Q.R. 53. There, parsing Sidaway, the standard had been set as requiring that a doctor disclose any “significant risk which would affect the judgment of the reasonable patient” (at [21]). This reading had received tacit endorsement from Lords Walker and Steyn in Chester v Afshar [2004] UKHL 41; [2005] 1 A.C. 134.
Both the Lord Ordinary and the Inner House of the Court of Session had rejected that argument and, applying the Bolam test per Sidaway, dismissed the claim. Pearce had merely restated Lord Bridge's first exception. Focusing on the risk to the baby that had actually eventuated (0.1–0.2%), rather than the larger, precipitating risk to the mother of shoulder dystocia (~10%), neither court considered the risk in Montgomery to have been substantial enough to satisfy Lord Bridge's first exception. Nor were they satisfied that Miss Montgomery had specifically questioned Dr. McLellan about the risks. Repeatedly expressing generalized concerns about her foetus's size was insufficient to trigger the second exception. Finally they denied any causation, finding that, even had she been informed, she would not have acted differently. This rather extraordinary finding can be explained by both courts’ reliance on Montgomery's own statement in evidence that she “was not arrogant enough to demand a caesarean section”. The exceptional approach to causation developed in Chester v Afshar provided no aid; birth was not a truly elective procedure.
A seven-member panel of the Supreme Court unanimously dismissed this reasoning on all counts and departed from Sidaway. The reasoning was twofold: Sidaway had been misunderstood in practice and the paternalistic model of the doctor–patient relationship on which it was based had ceased to reflect reality.
As to the first, Sidaway was subjected to a re-reading, which, in effect, took Lord Scarman's opinion as the ratio, reading Lords Bridge, Keith, and Templeman as joining him in placing the patient first. On this basis, Pearce had correctly parsed the first of Lord Bridge's exceptions in Sidaway. This required that risks which were so obviously necessary to an informed choice on the part of the patient must be disclosed. The 10% risk of a stroke was an example, not a threshold. The second of Lord Bridge's exceptions had proven “profoundly unsatisfactory” in practice. It relied on a “reversal of logic” in that the less a patient knew, the less they could ask about a specific risk. Furthermore, as Montgomery aptly demonstrated, courts had relied on “excessively fine distinctions” between questioning and merely expressing concerns. Finally, requiring a proactive approach by patients “disregarded the social and psychological realities” of a consultation (at [58]).
As to the second, the Court felt that there had been a clear shift in the doctor–patient relationship since Sidaway. The Court noted the increased importance of personal autonomy as well as the acceptance of patients as having rights rather than being passive recipients of care. Indeed, they were consumers in the health-care marketplace. The increased availability of, and familiarity with, information about medical risks, often through the internet, demonstrated that patients could be trusted to weigh medical information. Furthermore, the value of self-determination had since been re-enforced by the Article 8 jurisprudence of the ECtHR as it pertained to patients as well as a number of international biomedical instruments. Finally, changes to the General Medical Council guidance on consent itself revealed the replacement of paternalism with a model based on partnership between doctor and patient.
The Court held that advice and disclosure could be distinguished from diagnosis and treatment. As the practitioner cannot form an objective view of what the patient considers relevant, the extent of disclosure cannot be a matter of clinical judgment so the Bolam test is inappropriate. Instead, the starting point must be that “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken” (at [84]).
In place of the Bolam test, the Court imposed a duty to disclose any material risks. A risk is material if a reasonable person in the position of the patient would attach significance to it. Significance was said to be broader than the mere magnitude of the risk and medical practitioners will have to consider the impact and the importance to the patient of the various risks and benefits of treatment. In addition, the Supreme Court adopted the formula of the High Court of Australia in Rogers v Whitaker (1992) 175 C.L.R. 479 that a risk may also be material where the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. The duty to disclose also naturally encompasses disclosure of reasonable alternatives as this necessarily contextualizes any treatment being discussed.
The Court further stressed that the dialogue necessary for ensuring that the patient can make an informed decision must be comprehensible and cannot be demonstrated simply with a signed consent form. It is submitted that this will also require information to be given in a timely fashion so that it can be properly digested. Finally, the Court was keen to note that the new Montgomery test was subject to exceptions in cases of necessity or where a practitioner reasonably considered disclosure to be “seriously detrimental to the patient's health” (at [88]). The court emphasised that this latter “therapeutic exception” must be restrictively applied so as to avoid undermining the general principle that it is the patient's decision whether to undergo treatment.
Applying this to the case, the risk of shoulder dystocia as a major obstetric emergency with potentially traumatic physical consequences for the mother herself, as well as the alternative of delivery by caesarean section should have been disclosed. As Lady Hale noted, the record suggested that Dr. McLellan's choice not to offer a caesarean section was based more on a moral rather than medical judgment that vaginal delivery was preferable; this could not provide a justifiable basis for denying the patient free choice. As to causation, the Court noted that the lower courts had focused on the incorrect risk and that, in focusing on Montgomery's own evidence, the Lord Ordinary had ignored unequivocal evidence from Dr. McLellan that practically every mother, so informed, would have opted for a caesarean section. As such causation was satisfied in the ordinary fashion, discussion of Chester v Afshar was unnecessary.
Aware of the decision's overall impact and the fact-sensitive nature of future cases, the Court noted that predictability of outcome could be sacrificed at the altar of patients’ rights. Further, a shift in emphasis from practitioner control of information to partnership, that is to say patients choosing for themselves and living with the consequences, might draw the motivational sting out of potential litigants.
How one identifies the relevant risk and the breadth of any reasonable alternatives will undoubtedly provide the battleground for much future litigation. The approach of the courts below in Montgomery demonstrates that the law here had been a mess. Montgomery is therefore to be welcomed not only for its undoubtedly correct result, but also for the clarity it provides. That the basis for disclosure is the patient's right to be put in a position where they can fully exercise their decisional autonomy now brooks no contestation.
