Court decisions on medical consent since Montgomery v Lanarkshire Health Board

In March of this year, I wrote about the appeal case of Montgomery v Lanarkshire Health Board (Scotland) Hilary Term [2015] UKSC 11 which sounded the death knell for the Bolam test in consent cases.

In that case, their Lordships concluded that the Bolam test was not appropriate in cases of consent, stating:

‘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.  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.’

Montgomery was decided by the Supreme Court and as such is retrospective and applicable in all Courts in England and Wales.  The importance of the decision can be shown by the fact that it has already been applied in a string of cases.

In the very recent case of Jones –v- Royal Wolverhampton Hospitals NHS Trust (2015) QBD (Green J) 26/06/2015, the claimant was given permission to amend her Particulars of Claim in the light of Montgomery.  In brief, it was recommended by a nurse that the claimant undergo electric shock treatment in order to normalise her heart rhythm. Unfortunately, she suffered a severe stroke a short time after the treatment.  The claimant wished to argue that post Montgomery, any reasonable nurse would have told her of the risk of stroke if she did not have anti-coagulation treatment immediately. An amendment to the Particulars was necessary to allow the Court to decide on the point. The Court granted permission on the basis that prior to Montgomery, the claimant did not consider that the issue of consent in those terms was arguable and that it was consistent with the overriding objective to allow her to amend the Particulars accordingly.

Like Montgomery, the case of Middleton –v- Ipswich Hospital NHS Trust [2015] EWHC 775 (QB), revolved around the alleged failure of the defendant trust to advise on the risk of shoulder dystocia occurring during labour and to raise the possibility of a caesarean section with the claimant’s mother in the course of her antenatal care. Montgomery was applied and the claimant succeeded on liability and causation.

The case of FM (by his father & Litigation Friend GM) –v- Ipswich Hospital NHS Trust [2015] EWHC (QB) 775 27/03/2015 also involved failure to advise on the risk of shoulder dystocia.  The claimant suffered a severe brachial plexus injury at birth. Montgomery was applied and it was held that had the claimant’s mother been properly advised of the risk of shoulder dystocia, she would have opted for a caesarian section delivery and the claimant would have avoided the severe injury she suffered.

Montgomery was also applied in the case of Mrs A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038, although this claimant was ultimately unsuccessful.  She argued that there had been a failure to detect a chromosomal abnormality during her pregnancy.  Montgomery was considered and applied but the Court found that there was no material risk of which the claimant should have been advised.  In addition, it was not accepted that the claimant would have either chosen to investigate or to terminate had the abnormality been detected.

In the case of Spencer –v- Hillingdon Hospital NHS Trust [2015] EWHC 1058, the claimant developed bilateral pulmonary emboli following surgery for an inguinal hernia. The Court considered Montgomery and found that the defendant trust had failed to advise the Claimant of the risk of pulmonary embolism.

It is clear therefore that the decision in Montgomery has already influenced the outcome of several cases and will be of huge importance in the future to those claimants bringing clinical negligence cases on the issue of consent.  It must be right that medical staff are under a duty to take reasonable care to advise their patients of material risks involved in treatment or procedures and that they cannot escape liability on the basis that other practitioners may also have failed to advise of those risks.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*