The duty was owed by the doctor who performed the surgery that Miss Chester consented to. In practical terms, the ruling should apply at least back to 1999, when Montgomery saw her obstetrician. When she was raped, Ellen thought it was the worst thing to ever happen to her. The law on consent has progressed from doctor focused to patient focused. It is in fact Lord Scarman that introduced the concept of ‘material risk’, 30 years before the Montgomery ruling. Doctors at the coalface have received little official direction on how their practice should change in light of the ruling. During her son’s delivery, shoulder dystocia occurred and, despite the best efforts of the obstetric team, there was a twelve minute delay between the delivery of his head and his shoulders. The argument in this appeal was that is not appropriate to use the accepted practice of a body of reasonable medical practitioners when consent is considered. Some doctors feared that more stringent disclosure requirements would risk overwhelming patients with information, causing distress or leading them to make poor decisions, while doctors’ time would be taken up with lengthy explanations, creating a drain on healthcare resources. He also added that if a patient asked a question then it should be answered. In keeping with general practice Dr McLellan would customarily offer a caesarean section to diabetic mothers where the estimated birth weight is 4.5 kilograms. However, this could require a patient to have a level of knowledge that a non-medical professional cannot be expected to have. Copyright © 2020 BMJ Publishing Group Ltd 京ICP备15042040号-3, , professor of maternal and fetal health and director of Tommy’s Centre for Maternal and Fetal Health. Lanarkshire Health Board was found liable in negligence as Mrs. Montgomery was not Contributors and sources: The authors were organisers (ET, WW, JEN) and participants (SWC, AS, ESC) of an event in the Edinburgh Medical Debates series on the ethical and legal impact of the Montgomery case.6 ET is a medical student at the University of Edinburgh and was primarily responsible for research and initial drafting of the manuscript; SWC is a researcher in bioethics and was responsible for subsequent drafting, critical revisions, ethical analysis, and part of the legal research; ESC, WW, and JEN are clinicians and were responsible for conceiving the idea for the manuscript, critical revisions, and obstetric medicolegal advice; AS is a barrister and QC in both Scotland and England, specialising in medical negligence, and was responsible for legal advice, analysis, and critical revisions. In making this ruling, the Bolam test was applied which meant that as the usual practice of a body of reasonable doctors in the field of neurosurgery was to not have mentioned this less than one per cent risk. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The case changed the Bolam testto a greater test in m… It is understood that an application to appeal to the Supreme Court is being presented and if allowed, some of the issues raised in this article may be further discussed. He was convicted of murder and sentenced to death, but the Louisiana Supreme Court reversed his conviction after finding that public prejudice had pre-vented a fair trial. The involvement of seven justices in this final appeal is of particular importance as this is the number of justices required to change or overrule a previous House of Lords ruling; in this case, the ruling in Sidaway. Mrs Pearce had not been informed of the 0.1-02% risk of this happening as it was not felt to constitute a significant risk. The Montgomery decision redefined the standard for informed consent and disclosure. Montgomery then claims that Bram was revived by the Supreme Court's recent decision in District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. Patient consent: do doctors really know best? Documentation of this discussion and the options offered is important and is required by the GMC guidance on the same. He also suffered an avulsion of the brachial plexus, rendering his arm useless. The Patient’s Charter: What Users Think. Over this time the blood flow through the umbilical cord was compromised and Sam suffered a significant hypoxic injury which resulted in brain damage and cerebral palsy. This case involves a patient, Bolam, who sustained injuries during a course of electro-convulsive therapy being used as a treatment for depression. She had previously had an elbow injury and spinal surgery and had been under the care of the neurosurgeon in question for many years. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not discussed and a plan was made for vaginal delivery. The Lords felt that you could only accept a body of medical opinion if the action they supported was felt to be a logical one. In 1999, Nadine Montgomery was pregnant with her first child, Sam. The ruling does not include any specific ‘percentage cut off’ for a risk as this cannot be relied upon to identify what risks could have such an impact on a reasonable patient’s judgement. Case ID. His comments also included the concept of the therapeutic exception where it would be acceptable for a doctor to withhold some information if it was felt that disclosure would harm the patient. She argued that had she been warned of the risk of this happening she would have taken longer to consider and reach her decision to have the surgery. All seven of the Justices supported the appeal. One such attempt in Scotland has, so far, been unsuccessful.20 Two English cases have allowed consent claims to be added after the Montgomery decision.21 22 Some cases have succeeded on a Montgomery basis23; we (AA) understand that others have settled before litigation ever started or was concluded, as the claims were unanswerable in the light of Montgomery. http://creativecommons.org/licenses/by-nc/4.0/ On 2nd December her daughter was found to have died in utero. View Essay - Case Brief - Maddox v. Montgomery from CJAD 405 at Columbia College. In 1999, Nadine Montgomery was pregnant with her first child, Sam. These issues are not always pursued, but obstetric litigation practice has noticeably changed, making professional training and clarity with respect to guidelines an even higher priority. A patient, Miss Chester, was under the care of a neurosurgeon, Mr Afshar, for a 6-year history of back pain and she had been shown to have a vertebral disc protrusion on an MRI scan. Patrick deteriorated and suffered a cardiac arrest from which he was resuscitated but he had sustained significant brain damage. 2783, 171 L.Ed.2d 637 (2008). Medical staff performed the appropriate manoeuvres to release Sam but, during the 12-minute delay, he was deprived of oxygen and subsequently diagnosed with cerebral palsy. Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana. This is an Open Access article distributed in accordance with the Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, which permits others to distribute, remix, adapt, build upon this work non-commercially, and license their derivative works on different terms, provided the original work is properly cited and the use is non-commercial. Some clinicians said that retrospective application of the judgment could “open the floodgates” for claims in relation to doctors’ past actions.10 Others thought that the Montgomery ruling was unlikely to have this effect, however “excited the claimant law firms might become initially.”11 Legal opinions were reserved, describing the ruling as “the belated obituary, not the death knell, of medical paternalism.”12 Some argued that the standard imposed by the Montgomery decision merely reflected good practice as already specified by the GMC13 and would make little practical difference to clinicians.8 Nevertheless, the concern generated by the ruling might affect doctors’ behaviour and other potential cases. She expressed general concerns throughout her antenatal care. In this case, the assertion that Dr Horn would not have intubated Patrick if she had been present was felt to be a logical one and, therefore, not negligent. Her two-year-old son had been admitted to hospital with croup under the care of two doctors, Dr Rodger and Dr Horn. This case was brought by the mother of Patrick Bolitho, a young boy who died following a cardiac arrest in hospital that resulted in severe brain damage. Mrs A v East Kent Hospitals University NHS Foundation Trust  EWHC 1038 (QB). . http://creativecommons.org/licenses/by-nc/4.0/, http://www.bmj.com/content/350/bmj.h1481/rr-23, Brighton and Sussex University Hospitals NHS Trust: Consultant in Stroke Medicine, Practice Plus Group: General Practitioner, Rush Hill & Weston Surgeries: Salaried GP, Herefordshire and Worcestershire Health and Care NHS Trust: Consultant Psychiatry, Women’s, children’s & adolescents’ health. If you are unable to import citations, please contact As the risk of serious consequence was felt to be so small, it was not discussed. In his ruling, Lord Hope stated: The injury was intimately involved with the duty to warn. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in … Many organisations (in particular the General Medical Council, who intervened to make submissions in the case) said that the Montgomery decision had simply enabled UK law to catch up with current GMC guidance; others hailed it “the most important UK judgment on informed consent for 30 years.”4 Doctors have expressed their concerns about its potentially radical effects on patient care and clinical practice.5 We held a public debate in 2015, including doctors, lawyers, and medical students, which showed renewed tension between the professional discretion of doctors and patients’ choices6; indeed, the verdict has been characterised as supporting patient autonomy over medical paternalism.3 7 8 9 But what are the implications for doctors’ practice and their legal liability? Montgomery v Lanarkshire Health Board  SC 11  1 AC 1430. It was felt that, despite not being told of the risk of paraplegia, Mrs Sidaway had been given sufficient information to enable her to make a decision about proceeding with the treatment. Hanley took legal action after she suffered an injury during an injection being given by her doctor when the hypodermic needle broke. Log in using your username or email address. So the Montgomery principles have been known—or should have been known—by doctors for many years. Even if the risk be material, the doctor will not be liable if upon a reasonable assessment of his patient’s condition he takes the view that a warning would be detrimental to his patient’s health. Sidaway v Board of Governors of the Bethlem Royal Hospital and others  871 AC. The jury returned a verdict of "guilty without capital punishment," which carried an automatic sentence of life without parole. Although upset, Mrs Pearce accepted this advice. It should be viewed differently from the process of diagnosis or treatment. You do not need to be a member of the College in order to create a login. Summary: Justin reviews the issues of consent in clinical negligence cases in, and subsequent to, the case of Montgomery. technical support for your product directly (links go to external sites): Thank you for your interest in spreading the word about The BMJ. See: Bolam v Friern Hospital Management Committee  1 WLR 582. She expressed general concerns throughout her antenatal care. Facts of the case In 1963, Henry Montgomery was found guilty and received the death penalty for the murder of Charles Hunt, which Montgomery committed less than two weeks after he turned 17. Clark v Greater Glasgow Health Board  CSOH 25. In 1999, Nadine Montgomery gave birth by vaginal delivery to Sam. The Montgomery test was defined in the case 1of Montgomery v Lanarkshire Health Board. The Montgomery case in 2015 was a landmark for informed consent in the UK. But doctors must judge what is appropriate for each patient and how their exercise of judgment might be assessed by the courts. The claimant alleged that the trust was negligent in failing to advise of this possibility. Many doctors have questioned the implications that the recent Supreme Court judgement of Montgomery – v Lanarkshire Health Board1 will have for the way they obtain consent from patients. With Elizabeth Montgomery, William Daniels, Cliff Potts, Rosemary Murphy. Since the Montgomery ruling, several attempts have been made to introduce a consent based claim to cases that were under way before the decision. What was sufficient information to make a balanced decision could only be decided by the patient, not their doctor, and it should be presented along with information on reasonable alternative options. If these feelings are explored and the patient genuinely wishes no information or would prefer the doctor made the decision, then discussions should be documented and treatment proceeded with if that is felt to be appropriate. He took the view that it was the patient’s right to make a decision about whether to proceed with a treatment or not, and the only way they could make that judgement was to have been presented with all the pertinent information. You can also use your College Personal ID (PID) if you have one. The Montgomery v Lanarkshire case of March 2015 1 drew fresh attention to informed consent. The court applied the Montgomery test and decided that the risk was not material, because neither a reasonable patient nor the patient herself would have attached significance to it. The case was made that as the consultant had not discussed the risk of shoulder dystocia, the potential significant consequences of it occurring and the alternative option of a Caesarean section that negligence had occurred as far as consent is considered; Mrs Montgomery was not able to make a fully informed decision without full information on all the options. Federal Cases ; She has type 1 diabetes and was concerned during her pregnancy that the size of her baby might lead to difficulties with a vaginal delivery. GMC guidance says that the consenting process is not a snapshot but an ongoing process. It was argued by his mother that there had been negligence in his care as, had Dr Horn come to review her son and had he been intubated, then his brain damage and death could have been prevented. Patients are not always aware of the facts of their treatment after consent related discussions,26 and they are influenced by the way in which information is presented (the “framing effect”).27 But the difficulties of conveying information about treatment and risks should not be taken to indicate that patients are incapable of understanding medical information or that patient autonomy in decision making is meaningless. Two years after the Supreme Court’s decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice. He died seven years later. In his appeal to the House of Lords, Mr Afshar focused on the grounds of causation as Miss Chester was likely to have consented for the operation and that the operation would have carried the same risk, even if it had been performed at a later date. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Judgment date. Lord Diplock felt that the right amount of information to be disclosed was to be decided by the medical profession and that the right of the patient at that time was a right to be treated in the best way that a doctor thought they should be. With regards to the disclosure of the risk of fracture, it was the doctor’s practice not to discuss the risk unless directly asked, in which case he would say the risk was very slight. Previously, the Bolam test14 in England and the Hunter v Hanley test15 in Scotland were used to determine what should be disclosed. Judgment details. This practice refers back to the ruling of Lord Diplock in Sidaway who advised that if a specific question was asked, it should be answered. Despite expressing concern to her consultant about whether she would be able to deliver her baby vagi… 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. Obstetricians urgently need guidance. 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. NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. The judge considered the Montgomery ruling and found that failure to inform the patient was a breach of the duty of care. In Spencer v Hillingdon NHS Trust (April 2015)23 the patient had bilateral pulmonary emboli after a hernia operation. A patient was to be informed of any common or serious potential consequences or complications and the determination of what was deemed common or serious was for the doctor to decide, not the patient. The Supreme Court of the UK announced judgment in her favour in March 2015. Mrs Montgomery was around five feet tall, and was also diabetic, which often results in a larger foetus. The doctor’s role is to ensure that relevant information is presented to enable the patient to use it meaningfully. Having difficulty registering or logging in? Mrs Montgomery is diabetic and small in stature and the risk of shoulder dystocia was agreed to be 9-10%. To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. This question is for testing whether or not you are a human visitor and to prevent automated spam submissions. Ethically, it clarifies the existing shift towards a more cooperative approach in the consultation room. The doctor’s normal practice was to give ECT without a relaxant and without any physical restraints; the doctor would support the patient’s chin and shoulders while nurses stood at either side of the treatment couch to prevent the patient falling. Miss Chester had the spinal surgery and suffered a worsening in her symptoms. 2d 756, 762 (La. What was worse was the treatment by the hospital staff, police and the court system when she reported it, and the afttermath of the culprit's apprehension. This ruling took the view that practice in consent was to be regarded in the same was as diagnosis or treatment when considering if negligence had occurred and the test that was created was doctor, rather than patient, focussed. 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. Rather it shows that the communication process has a strong influence on how patients understand, remember, and evaluate information—all of which are essential to informed consent. Mr Afshar advised surgery on the protruding disc. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not … This would have meant that she would have had her surgery at a later date rather than choosing not to have it at all. Forgotten your username or password? 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