[33] Nathan Tavares, Webster (a Child) v Burton Hospitals NHS Foundation (2017) 2 Journal of Personal Injury C93, C95. The Supreme Court judgement in ‘ Montgomery v Lanarkshire Health Board ’ has caused a change in the law concerning the duty of doctors on disclosure of information to patients regarding risks. This decision was an overruling of a previous decision made by the House of Lords. The decision demonstrates a lack of expertise in dealing with specific clinical issues and misrepresents professional guidance. Summary of Montgomery v Lanarkshire Health Board This Supreme Court judgment is required reading for all medical professionals, because the Supreme Court has made clear that the doctrine of informed consent is now part of English (and Scottish) law. [30] The General Medical Council recognises that modern medicine does not fit this conventional stereotype. The courts have made inroads into this approach but the test used to ascertain if a doctor has breached their duty of care to a patient has until recently been couched in terms of what is deemed reasonable in the profession. ; Balfour + Manson LLP. Last week’s case of Montgomery v Lanarkshire Health Board has important implications for doctors All doctors should be aware of the landmark decision in Montgomery v Lanarkshire Health Board, given by the UK Supreme Court on 11 March 2015.1 2 Nadine Montgomery was a woman with diabetes who gave birth by vaginal delivery. Published. In conclusion, the case of Montgomery has eroded the notion of traditional paternalism in relation to disclosure of risks in medical law, however, it has not spelt the end of paternalism in the medical profession. The Court of Session concluded that the test for breach of duty of care should be decided by reference to expert medical opinion and applying the Bolam test. Montgomery v Lanarkshire Health Board concerned a negligent non‐disclose of certain risks involved in natural birth. In-text: (MONTGOMERY (Appellant) v LANARKSHIRE HEALTH BOARD (Respondent) & GENERAL MEDICAL COUNCIL (Intervener) [2015] UKSC 11 | Case Library | 12 King's Bench Walk, 2015) Your Bibliography: 12kbw.co.uk. MONTGOMERY (Appellant) V LANARKSHIRE HEALTH BOARD (Respondent) & GENERAL MEDICAL COUNCIL (Intervener) [2015] UKSC 11 | Case Library | 12 King's … [27] The law tended to defer to the expertise of the medical profession in judging the standards expected. [20] Consent had to be obtained for treatment involving an interference with bodily integrity. Nicholas Millar, Solicitor Montgomery v Lanarkshire Health Board UKSC 11 is a landmark decision, in which the UK Supreme Court has found in favour of informed consent on the part of a patient who is considering, or being advised, to undergo medical treatment. [5] Gold v Haringey HA [1988] QB 481; [1987] 2 All ER 888; Blyth v Bloomsbury HA [1993] 4 Med LR 151. There is no reason to perpetuate the application of the Bolam test in this context any longer. The tribunal consisted of 7 SC Judges ((Lords Neuberger (P); Lady Hale (DP); Lords Keer and 1Reed ; Lords Hodge, Wilson and Clarke). Nadine Montgomery wins £5m from NHS Lanarkshire over brain damage to son. For some, Montgomery represents a defining moment in medical law which marks the … where a patient requires an urgent medical procedure. Advisory Board. The Court revisited Sidaway v Board of Governors of the Bethlem Royal Hospital. The case was deemed a conflict of standards – informed consent versus medical preference. Emily Dorotheou, Olswang LLP Case Comments ≈ 7 COMMENTS. The approach in Montgomery is a moderate one in that it still retains a place for the medical profession in the decision-making process. [31], Many commentators have categorised the case as a victory for personal autonomy and the demise of paternalism. 2015. Deciding whether a person is so disinclined may involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. Medical professionals have not been completely stripped of the ability to influence and decide on what is best for the patient. Mrs Montgomery was around five feet tall, and was also diabetic, which often results in a larger foetus. UKSC 2013/0136. [35] Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia. As stated by the Supreme Court, a doctor must engage in dialogue with the patient so that a patient understands the seriousness of their condition, the benefits and risks involved of treatment and any alternatives so that the patient’s decision is an informed one. The doctor’s judgment is not to be questioned. NHS Lanarkshire - improving the health of North and South Lanarkshire [3] In this case, the House of Lords endorsed the Bolam test in that a doctor would not be deemed negligent if he or she acted in accordance with standards that was considered proper by reference to a reasonable body of medical opinion. N.M. Pursuer; against. Paternalism has been dealt a blow by the case but it still survives to an extent. [30] Chester v Afshar [2004] UKHL 41 [16] (Lord Steyn). The claimant sought damages from the health board for negligence on the part of the doctor for failing to advise her on the risk of shoulder dystocia. The Supreme Court further noted that since Sidaway was heart there has been a marked shift towards recognising personal autonomy in a broader set of circumstances. 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. Paradoxically, its ruling supporting the principle of autonomy could be justified only by disregarding the individual patient's actual choices and characteristics in favour of a stereotype. [16] Lord Kerr concluded that modern society pointed ‘away from a model of the relationship between the doctor and the patient based upon medical paternalism ’. Neutral citation number [2015] UKSC 11. [41], However, ‘the idea of a fully autonomous patient making choices completely independent of the doctor’s input does not reflect the complex reality of medical decision making, nor does the caricature of a paternalistic doctor riding roughshod over patients’ objections.’[42] The doctor is still a core, if not the core, cog in the machinery of the decision-making process. Nadine Montgomery (“NM”) brought a claim against Lanarkshire Health Board arguing that the delivery of her baby Sam Montgomery fell below the standard to be expected of a … The Court saw no reason why this approach should be maintained. The doctor did not inform her of the 9-10% risk of shoulder dystocia, where the baby's shoulders are unable to pass through the pelvis among diabetic women as she viewed the problem being very slight and a caesarean section was not in the claimant's interest. Women who have diabetes are more likely to have larger babies. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. The Supreme Court concluded that an adult of sound mind should be able to decide which treatment to undergo. Defenders: ­­­­­­­­­­­­­­­­­_____ Pursuer: MacAulay Q.C., Milligan Q.C. It is founded upon the idea that the ‘doctor knows best’ and that deference should be shown to their clinical judgment. As a result of an occlusion of the umbilical cord caused by shoulder dystocia, Sam's brain was starved of oxygen for some 12 minutes. [14] Rogers v Whitaker (1992) 175 CLR 479; Reibl v Hughes [1980] 2 SCR 880. The stimulus statement implies that the case has led to end of paternalism in all clinical practice. In Montgomery, the Supreme Court emphasised and preferred the dissenting judgment of Lord Scarman in Sidaway. For those who point to these therapeutic exceptions as a sign of enduring medical paternalism that argument is not convincing. MONTGOMERY V LANARKSHIRE HEALTH BOARD ([2015] UKSC 11]) by Hamish Dunlop, Barrister at 3PB Barristers 1. 27 Friday Mar 2015. A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter. Case ID. [13] The Court note recent developments in the jurisprudence of the European Court of Human Rights showing a move away from medical paternalism. That assumption is based on a misreading of the case. [33] It aligned the United Kingdom with other jurisdictions. 11 Mar 2015. The decision demonstrates a lack of expertise in dealing with specific clinical issues and misrepresents professional guidance. Nadine Montgomery presents her story that led to the landmark ruling on consent (Montgomery v Lanarkshire Health Board [2015]). [4] Lesley Johnston, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar: Part 1’ (2015) 18 Scots Law Times 81, 83. Therefore, doctors should be trained to ensure they can validate and check that a patient truly understands what is being explained to them. [36] It represents an individualised approach to patient care. [34] A similar approach is observed in the United States. [39] It also accords with the General Medical Council which endorses ‘the replacement of paternalism with a model based on partnership between doctor and patient.’[40] It will also have repercussions throughout medical practice. The case of Montgomery v Lanarkshire Health Board[1] appeared to make further inroads into the traditional approach as applied to the provision of information to patients of the risks involved in a procedure. Paradoxically, its ruling supporting the principle of autonomy could be justified only by disregarding the individual patient's actual choices and characteristics in favour of a stereotype. The complement of … [54] However, it is important not to push the decision-making process too far towards the patient. Or More of the Same’ (2015) 31(3) Professional Negligence 190, 193. Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient Share. In practical terms, the number of times that they will need to be used will be negligible when compared to the situations in which the duty of disclosure will have to be fulfilled. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications … However, a more moderate approach is advanced here. Twitter; Facebook ; LinkedIn; The appellant, Nadine Montgomery, gave birth on 1 October 1999 and, as a result of complications during delivery, her son was born with cerebral palsy. For some, Montgomery is more likely to be recognised as all-encompassing in medical practice and may also dictate the path of ‘consent in health research and innovative treatment’. She said that she had been advised a cesarian birth for her child, but the doctors had not . [35] According to Elliot the decision marks a legal and medical shift ‘away from a model of the relationship between the doctor and patient based upon medical paternalism, to one which recognises and needs to be respectful of the autonomy and dignity of patients’. [39] Sue Vickery, ‘Revisiting Consent: Communication of Risks, Medical Paternalism Versus Patient Autonomy’ (2015) 20(1) Coventry Law Journal 40, 44. [46] While the Supreme Court was quick to dismiss this concern by stating that it was erroneous to ‘view patients and uninformed, capable of understanding medical matters’[47] – this is not entirely convincing. [28] Hugh Teff, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship (Clarendon Press 1994). NADINE MONTGOMERY v. LANARKSHIRE HEALTH BOARD. Blyth v Bloomsbury HA [1993] 4 Med LR 151, Hatcher v Black 1 July 1954 WL 42295 (QBD) The Times, (London) July 2, 1954, Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] AC 1430, Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167, Sidaway v Board of Governors of the Bethlem Royal Hospital  [1985] AC 871 (HL), Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62, Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia, Jackson E, Medical Law: Text, Cases and Materials (4th edn, Oxford University Press 2016) 210, Tallis R, Hippocratic Oaths: Medicine and its Discontents (Atlantic 2004), Teff H, Reasonable Care: Legal Perspectives on the Doctor-Patient Relationship (Clarendon Press 1994), Amirthalingham K, ‘Medical Negligence and Patient Autonomy – Bolam Rules in Singapore and Malaysia’ (2015) 27 Singapore Academy of Law Journal 666, Chan S et al, ‘Montgomery and Informed Consent: Where are We Now?’ (2017) The British Medical Journal 357, Draghici C, ‘The blanket ban on assisted suicide: between moral paternalism and utilitarian justice’ [2015] 3 European Human Rights Law Review 286, Elliot T, ‘A Break With the Past? [21] Materiality was defined by the Supreme Court as whether in the particular circumstances a reasonable person in the patient’s position would deem the risk to be significant. Department of Health (DoH), The NHS Constitution: the NHS belongs to us all (London DH Publications, March 2013).GMC, Consent: Patients and Doctors Making Decisions Together (GMC 2008). [37] Emily Jackson, Medical Law: Text, Cases and Materials (4th edn, Oxford University Press 2016) 210. Consequently, he was born with a dyskinetic form of cerebral palsy. An approach that was completely controlled by the patient may lead to unwanted circumstances. The aim of this paper has been to explore the extent to which the decision in Montgomery has signalled the end of paternalism in medical practice. Montgomery v Lanarkshire 2. LANARKSHIRE HEALTH BOARD. Nadine Montgomery wins £5m from NHS Lanarkshire over brain damage to son. [3] Kumaralingham Amirthalingham, ‘Medical Negligence and Patient Autonomy – Bolam Rules in Singapore and Malaysia’ (2015) 27 Singapore Academy of Law Journal 666, 667. [48] This is one area where a doctor has an amount of discretion. [9] Further, the Supreme Court recognised that lower courts had to some degree departed from the Bolam test in relation to the advice given by doctors to their patients. Sidaway v Board of Governors of the Bethlem Royal Hospital, https://en.wikipedia.org/w/index.php?title=Montgomery_v_Lanarkshire_Health_Board&oldid=887938250, Creative Commons Attribution-ShareAlike License, This page was last edited on 15 March 2019, at 20:38. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. . 2. Case Comment: Montgomery v Lanarkshire Health Board [2015] UKSC 11. [18] Furthermore, the majority opinion in Sidaway itself has been criticised as lacking coherence and a uniform voice among the judiciary leading to confusion in its application. Or More of the Same’ (2015) 31(3) Professional Negligence 190, Foster C, ‘The Last Word on Consent?’ (2015) 165 New Law Journal 7647, Heywood J et al, ‘RIP Sidaway: patient-oriented disclosure—a standard worth waiting for? 11 Mar 2015. Lords Neuberger, Clarke, Wilson and Hodge agreed. He also suffered an avulsion of the brachial plexus, rendering his arm useless. The lower court rejected M’s argument. But the skill and judgment required are not of the kind with which the Bolam test is concerned; and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor. Paternalism in medical law is a recurrent theme. Judge: Supreme Court (Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge) Citation: [2015] UKSC 11 Summary of Montgomery v Lanarkshire Health Board. During labour the baby was deprived of oxygen due to an occlusion in the umbilical cord which was liked to shoulder dystocia. We have produced a short introduction to this video and also a video on the legal context of consent. The courts are embracing the approach in Montgomery and rightly so. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) British Dental Journal volume 218 , page 473 ( 2015 ) Cite this article 37 Accesses The Montgomery case in 2015 was a landmark for informed consent in the UK. Ms Montgomery, a diabetic, delivered her first child with shoulder dystocia and cerebral palsy as her doctor never informed her about the risks with vaginal birth, or about the alternative of caesarean delivery (CD). From Wikipedia, the free encyclopedia Montgomery v Lanarkshire Health Board UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Judgment date. 86. Resource publication date: 16th December 2019 For some, Montgomery represents a defining moment in medical law which marks the end of medical paternalism. [32] R Heywood et al, ‘RIP Sidaway: patient-oriented disclosure—a standard worth waiting for? The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. However, even where the exceptions do not apply, it is argued that a softer view of paternalism still survives, as the doctor remains a key driver in the decision-making process. [19], The Court criticised the analysis of the majority judgment in Sidaway to the extent that it endorsed the use of the Bolam test in relation a doctor advising of risks involved in a proposed treatment. It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor's duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) before Lord Neuberger, President Lady Hale, Deputy President Lord Kerr Lord Clarke Lord Wilson Lord Reed Lord Hodge JUDGMENT GIVEN ON 11 March 2015 Heard on 22 and 23 July 2014 According to Jackson this is to be commended as people have different experience, values and beliefs in society and therefore the wishes and opinions of a particular individual are rightly to be considered. M argued that she should have been informed about the risk of shoulder dystocia. Neutral citation number [2015] UKSC 11. M required care from C as she was diabetic and therefore it was likely she would have a large baby. Although she expressed concerns about the size of the baby, the risk of shoulder dystocia (9–10% in diabetic mothers 3) was never discussed with her. According to the Court of Appeal in Webster v Burton Hospitals NHS Foundation Trust[50] the Supreme Court ‘set out emphatically why such an approach [applying the Bolam standard to disclosing risk] to the issue of medical treatment was wrong’. Appellant Respondent James Badenoch QC Rory Anderson QC Colin J MacAulay QC Neil R Mackenzie Lauren Sutherland (Instructed … Justices. Nadine Montgomery's son was born with cerebral palsy as a result of shoulder dystocia during birth. Montgomery v Lanarkshire Health Board [2015] UKSC 11’ (2015) 23 Medical Law Review 455, Johnston L, ‘Informed Consent and the Lingering Shadow of Chester v Ashfar: Part 1’ (2015) 18 Scots Law Times 81, Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Professional Negligence 128, Miola J, ‘On the Materiality of Risk: Paper Tigers and Panaceas’ (2009) 17 Medical Law Review 76, McGrat CP, ‘Trust Me, I’m a Patient…Disclosure Standards and the Patient’s Right to Decide’ (2015) 74(2) Cambridge Law Journal 211, Mchale J, ‘Innovation, informed consent, health research and the Supreme Court: Montgomery v Lanarkshire – a brave new world?’ (2017) 12(4) Health Economics, Policy and Law 435, Montgomery J et al, ‘Montgomery on informed consent: an inexpert decision?’ (2016) 42 Medical Ethics 89, Reed E, ‘Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient’ (2015) 19 Edinburgh Law Review 360, Tavares N, Webster (a Child) v Burton Hospitals NHS Foundation (2017) 2 Journal of Personal Injury C93, Vick L, ‘Sports Injuries and the Liability of Doctor and Club’ (2015) Coventry law Journal 324, Vickery S, ‘Revisiting Consent: Communication of Risks, Medical Paternalism Versus Patient Autonomy’ (2015) 20(1) Coventry Law Journal 40, Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal recognition before the law (2014). That is a clear example of the preservation of paternalism in this field of medical law. This Supreme Court judgment is required reading for all medical professionals, because the Supreme Court has made clear that the doctrine of informed consent is … The Supreme Court affirmed the requirement of 'informed choice' or 'informed consent' by patients in medical treatment that rests fundamentally on the duty of disclosure by medical practitioners. [38] For Vickery ‘[t]he age of paternalistic medical practice can be hailed as being replaced with patient-centred decision-making’. [5] This harped back to the days of Lord Denning in Hatcher v Black[6] where the learned judge excused a doctor from lying to a patient as it was in their own interests. Paternalism is particularly acute when the patient is a child. in the cause. Further, M asserted she should have been told that she had an option of having a caesarean section. [54] Department of Health (DoH), The NHS Constitution: the NHS belongs to us all (London DH Publications, March 2013). Here the role of the doctor is key if the patient cannot understand. The decision confirms that a health professional must disclose risks of treatment and any alternatives subject to the two exceptions noted above. However, it should also be noted that the individualised approach might produce unwanted effects. In addition, a doctor does not need to disclose risks where there is a medical necessity e.g. Judgment in the appeal case of Montgomery v Lanarkshire Health Board (Scotland) [2015] was handed down by the Supreme Court last week. [40] CP McGrath, ‘Trust Me, I’m a Patient…Disclosure Standards and the Patient’s Right to Decide’ (2015) 74(2) Cambridge Law Journal 211, 212. [45] Tracey Elliot, ‘A Break with the Past? 84. Montgomery v Lanarkshire Health Board A similar approach has been adopted in the UK with the landmark Supreme Court judgment in Montgomery, which arguably goes even further than the current Irish law in relation to consent. [26] The idea that the doctor knows best has been engrained into the field of medicine for centuries. Montgomery v Lanarkshire HB is a deeply troubling decision when read closely. [24]Carmen Draghici, ‘The blanket ban on assisted suicide: between moral paternalism and utilitarian justice’ [2015] 3 European Human Rights Law Review 286. This increases the risk of shoulder dystocia during delivery by 10%. The main argument of this paper is that the case strikes the right balance between medical professionals and the patient. Finally, it is crucial to state that Montgomery applies to cases involving disclosing material risks. Montgomery vs Lanarkshire Health Board: background. The claimant was a woman of small stature and a diabetic under the care of a doctor during her pregnancy and labour. Two years on, Sarah Chan and colleagues discuss the consequences for practising doctors The Montgomery v Lanarkshire case of March 20151 drew fresh attention to informed consent. In-text: (MONTGOMERY (Appellant) v LANARKSHIRE HEALTH BOARD (Respondent) & GENERAL MEDICAL COUNCIL (Intervener) [2015] UKSC 11 | Case Library | 12 King's Bench Walk, 2015) Your Bibliography: 12kbw.co.uk. The Supreme Court allowed M’s appeal and found that C had breached the duty of care. The case of Montgomery v Lanarkshire Health Board appeared to make further inroads into the traditional approach as applied to the provision of information to patients of the risks involved in a procedure. 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