Court cases similar to or like Montgomery v Lanarkshire Health Board 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. [20] Consent had to be obtained for treatment involving an interference with bodily integrity. Way WAY past time for this! [35] Canterbury v Spence 464 F.2d (1972), USCA, District of Columbia. At one end of the spectrum, Lord Diplock’s view was that (1) any alleged breach of a doctor’s duty of care, whether in relation to diagnosis, treatment or advice, should be determined by the Bolam test; and (2) there is no obligation to provide patients with unsolicited information about risks. I concur with with judgement of the Supreme Court. The Court also noted how “unreal” [5] it was to place the responsibility on patients to ask about potential risks. The doctor’s judgment is not to be questioned. Wasn’t the original landmark informed patient consent law introduced far earlier than Montgomery v Lanarkshire? [17] And the provision of health care services was becoming more diverse and modern. While the approach is now a partnership approach between doctor and patient the doctor will still drive the process forward. [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. [36] Tracey Elliot, ‘A Break With the Past? However it must be noted that this case was decided on the basis that the doctor was wrong. [29] Judy Laing, ‘Delivering Informed Consent Post-Montgomery: Implications for Medical Practice and Professionalism’ (2017) 33(2) Professional Negligence 128, 130. As a result, an adult of sound mind is entitled to decide which treatment, if any, to undergo and her consent must be obtained beforehand. The baby was born disabled. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in hypoxic insult with consequent cerebral palsy. As a result of an occlusion of the umbilical cord caused by shoulder 1 The practical effect is that patients with full mental capacity must be properly advised about their treatment options and the risks associated with each option so that they can EDITORS: Dan Tench, Emma Cross, Emma Boffey, Rose Falconer, Adam Kosmalski and James Warshaw (CMS) The Supreme Court found that: “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. However, a more moderate approach is advanced here. [24]Carmen Draghici, ‘The blanket ban on assisted suicide: between moral paternalism and utilitarian justice’ [2015] 3 European Human Rights Law Review 286. [32] R Heywood et al, ‘RIP Sidaway: patient-oriented disclosure—a standard worth waiting for? The court was invited to depart from the decision in Sidawayand to reconsider the duty of a doctor towards a patient in relation to advice about treatment. For the mother involved, who had argued that she had not been told of significant risks surrounding her son’s birth, this was the culmination of a 16-year battle for compensation. The Supreme Court allowed M’s appeal and found that C had breached the duty of care. it isn’t up to doctors to decide if a particular surgery should take place, it is up to the patient. [42] Sarah Chan et al, ‘Montgomery and Informed Consent: Where are We Now?’ (2017) The British Medical Journal 357. The problem is patients are now more able to understand what they are being told. 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. If we subscribe to the traditional view that it is constructed upon the notion that the ‘doctor knows best’ then there is a strong argument that the case represents the death knell for paternalism. The case changed the Bolam testto a greater test in me… And actually based on an illegal clinical trial that went catastrophically wrong and the patient who had not given her consent almost died from multiple brain haemorrhages, multiple organ damage and was left permanently and severely disabled? [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. It should not set new standards wherein the risks as mentioned in the earlier comment where the patient suffers nerve damage of adhesions. 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. However, it should also be noted that the individualised approach might produce unwanted effects. The decision demonstrates a lack of expertise in dealing with specific clinical issues and misrepresents professional guidance. The risk of those is infinitesimally tiny but a reasonable person would attach significance to those risks however small. [51] In Spencer v Hillingdon National NHS Trust[52] the court concluded that: Montgomery is clearly a decision which demonstrates a new development in the law as it relates to informed consent…the ordinary sensible patient would be justifiably aggrieved not to have been given the information at the heart of this case when appraised of the significance of it. [37] Emily Jackson, Medical Law: Text, Cases and Materials (4th edn, Oxford University Press 2016) 210. [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. Doctors will also need to ensure that any information provided is comprehensible, such that the patient understands the seriousness of her condition, the benefits and risks and any alternatives so that she is able to make an informed decision. For some, Montgomery represents a defining moment in medical law which marks the end of medical paternalism. M was a patient under the care of C. C was a consultant obstetrician for the Lanarkshire Health Board. For those who point to these therapeutic exceptions as a sign of enduring medical paternalism that argument is not convincing. [54] However, it is important not to push the decision-making process too far towards the patient. [26] The idea that the doctor knows best has been engrained into the field of medicine for centuries. 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