Changes To Consent To Medical Treatment

Following the Supreme Court decision in Montgomery v Lanarkshire Health Board (2015) the law relating to informed consent has been redefined. Before the change, it was down to the clinician to decide how much information to give a patient (providing that decision would be considered reasonable by a responsible body of medical opinion, the Bolam test). Post Montgomery, clinicians must ensure that their patient is fully informed about any potential risks to the proposed treatment, and of any alternative treatment options.

Background to 'Montgomery'

Mrs Montgomery was pregnant. Despite having diabetes, she was not informed of the small risk of injury to her baby as a result of shoulder dystocia. The clinician was concerned that if she did advise Mrs Montgomery of the risk she would opt for a caesarean which, in the opinion of the clinician, was not in the maternal interest. Unfortunately the risk materialised and Mrs Montgomery's baby was severely disabled. Mrs Montgomery argued that, had she been told of the risk of injury to her baby she would have opted for a caesarean and the injury would not have occurred; it was not for the clinician to decide what information to give her regarding any risk.

The Bolam test

The case of Sidaway confirmed that it was for the clinician to decide how much information to give the patient, which must be backed up by a responsible medical body (known as the Bolam test). The Bolam test dealt with the standard of care required by health professionals. If the health professional in question could show that another health professional would have taken the same action (i.e. advised the same treatment) then the duty of care would not be considered as breached. The Bolam test was modified by the case of Bolitho which held the practice or treatment had to be reasonable. In simple terms this means even if a responsible body of health professionals would pursue the same course of action as the health professional in question, the practice also needs to be considered reasonable i.e. logical; it is simply not enough that another health professional supports the practice.

Material risks are bespoke to the individual

Following Montgomery the law has shifted. Clinicians must 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.' Material risk is not defined, and will depend on the circumstances of the...