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.
In so doing the court has effectively conscribed the ambit of the Bolam test, which has traditionally made it difficult for a plaintiff alleging negligence, in the context of medical services, to successfully bring a claim and, in cases involving consent, replaced medical opinion with the informed decision of the particular patient.
In the 1957 case of Bolam, the now traditional test was laid down that:
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” or, as alternatively put by the same Judge, “putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view”.
Notwithstanding challenges, this test has been the criteria by which all medical negligence actions in England and Wales, essentially the UK and also in Hong Kong, have been judged. The only real modification arose as a result of Bolitho v City and Hackney Health Authority  AC 232, a case which propounded that the body of the medical opinion must be “reasonable, responsible or respectable” and have “a logical and defensible basis”.
Bolam has traditionally been applied in two situations: one, to determine by which the standard of performance of a particular medical procedure be judged; two, the nature and extent as to what, if anything, the patient should be told in respect of a medical procedure that the doctor suggests or proposes be performed, including as to disclosure of risk.
In the first situation, if a respectable body of medical opinion exists that supports the particular standard of performance or procedure used, a plaintiff bringing a claim will normally not be able to succeed, notwithstanding another body, perhaps of a far larger number of medical practitioners, that is critical of and does not support what was (or was not) undertaken.
For the second situation, a doctor was not liable in negligence so long as what the doctor said or did not say, including as to risk, was in line with a respectable body of medical opinion.
As a result of Montgomery, the Bolam test, or medical opinion, no longer applies to information provision and disclosure, including as to risk – the second situation.
Montgomery – The Facts
In Montgomery, a case originating from Scotland, the plaintiff was a “highly intelligent” pregnant woman of short stature who suffered from injection dependent diabetes. Women suffering from diabetes are likely to have babies that are larger than normal, which brings with it an increased risk of approximately 10 percent of shoulder dystocia during delivery. Shoulder dystocia, whereby the width of the baby’s shoulders are such that they cannot pass down the birth canal and so the baby cannot be born vaginally unless the baby’s shoulders are somehow freed (or the baby returned to the womb and an emergency caesarean section performed), is an obstetric emergency for the mother, with serious potential adverse consequences for the baby.
Mrs. Montgomery was told that she was having a larger than usual baby. Even though Mrs. Montgomery expressed concern about the size of her baby the doctor did not warn her of the risk of shoulder dystocia. However, in a perhaps crucial piece of testimony, the attending advising obstetrician did say at trial that it was her practice not to discuss or advise of the risk of shoulder dystocia because she believed, if she did so, most expectant mothers in the situation of Mrs. Montgomery would opt for caesarean section. She was also of the view that caesarean sections were not in the maternal interest.
In 1999, while delivering her baby vaginally, shoulder dystocia occurred. It is recorded in the judgment that it took some 12 minutes between the baby’s head appearing and the effecting of delivery. As a result, the baby was deprived of oxygen. In consequence, he suffered cerebral palsy, with all four of his limbs being affected.
In bringing her claim Mrs. Montgomery lost at both first instance and before the (Scottish) Court of Appeal. This was in consequence of the famously opaque House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871, having applied the Bolam test to questions of risk disclosure and information provision. Expert evidence had been given for the defendant that essentially supported what Mrs. Montgomery had and had not been told, and was thus Bolam compliant.
In Montgomery the expectant mother argued, ultimately successfully before the Supreme Court, that she should have been warned of the risk of shoulder dystocia and advised of the alternative of a caesarean section.
There is in effect only one judgment (Lords Kerr and Reed) in which, while expressly disapproving of and overruling Sidaway, the various judgments therein are analysed at some length.
The thrust of judgments that had subsequently applied Sidaway purported to follow the “middle ground” speech of Lord Bridge, namely that when specifically questioned about risks it is the doctor’s duty to answer truthfully and as fully as the questioner required. The difficulties arose when the patient either did not ask questions or more troublingly did ask but not specifically “hit” the particular risk. Liability then was to be determined by what a responsible body of medical opinion would or would not have advised or warned of (ie, Bolam).
In analysing post-Sidaway cases, the Judges in Montgomery particularly cite Lord Woolff who, when in the Court of Appeal, held:
“… if there is a significant risk which would affect the judgment of the reasonable patient then, in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for himself or herself as to what course he or she should adopt” (in Pearce v United Bristol Health Care NHS Trust  PIQR P 53).
The court also refers to certain overseas decisions, particularly Reibl v Hughes  2 SCR 880 in Canada and Rogers v Whitaker (1992) 175 CLR 479 in Australia, where the decisions were rather at odds with the view “doctor knows best”.
The Montgomery judgment records the changes in (British) society and that “patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession”.
They refer to treatment offered as being not only dependent on clinical judgment but bureaucratic decisions and resource management, amongst other things.
Specific reference is made to a legal approach “which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives and living with the consequences of their choices”.
They say whether the risk of an injury or an alternative treatment ought to be discussed with the patient is not a matter of purely professional medical judgment. The patient is entitled to decide on the risks to her health which she is willing to run. Further
“[r]esponsibility for determining the nature and extent of a person’s rights rest with the courts, not with the medical professions”.
They concede that a patient may not wish or may choose not to be informed of risks. In deciding whether a patient is so disinclined may involve the doctor making a decision but Montgomery expressly makes clear such a judgment is not “dependent on medical expertise”.
In perhaps the core passage, the Judges hold:
“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.”
There is thus a very clear departure from the traditional determination by the views of the medical profession and a change to the decisions of the particular patient (or, more ominously, the “reasonable person in the patient’s position”).
This ups the ante on the medical profession, especially in the commercialised private practice of medicine in Hong Kong, in the event of Montgomery being followed by the Hong Kong courts or, at least, until it becomes clear that the decision will not be followed.
The Judges in Montgomery do add caveats. Firstly, the doctor may withhold information from the patient of which he reasonably considers the exposure would be seriously detrimental to the patient’s health. The doctor is also relieved in cases of necessity.
However, the Judges go on to say the assessment as to whether a risk is material cannot be confined to percentages. They suggest, non-inclusively, factors to be taken into account. The judges emphasise the assessment is fact sensitive and also sensitive to the characteristics of the patient. An example might be the facts of Sidaway where the surgeon warned of a risk of damage to a nerve root but not of a less than 1 percent risk of damage to the spinal cord. The spinal cord was damaged and resulted in paralysis for Mrs. Sidaway.
Secondly, the judgment in Montgomery emphasises dialogue with the patient, and the fact information conveyed must be comprehensible. They expressly disclaim the bombardment of technical information and the routine demand for signature on a consent form as being adequate.
This alone, if carried through, will have an impact on all members of the medical profession who propose a course of treatment, including those in the employ of the Hospital Authority, and will inevitably mean a longer period of time will have to be spent with individual patients. It is also likely to mean less use of standardised phrases as the particular patient, and his or her requirements and abilities having to be addressed.
The Judges also caution against abuse of what they term the therapeutic exception.
They go on to make the point that departure from the Bolam test will reduce the predictability of the outcome of litigation. This in itself comprises two elements. First, removal from the medical profession as determinative authority. Secondly, what might be termed patient autonomy, but possibly as judged ultimately by the reasonable man as determined by the courts!
If the Montgomery judgment is followed in Hong Kong then it is likely the plea that a known risk, which was warned of and consented to by the patient, will increase where the risk manifests. Contrary to the expectations of those making the plea, it will not negate a claim being made if the standard of performance of the operation is negligent, as judged (at the moment) by Bolam. The fact that a risk is known does not mean there is no negligence if the risk manifests. Indeed it may be that if a risk is known extra care should be taken to avoid that risk.
What is clear is that in the UK there is now a full, recent, authoritative, disapproval of the Bolam test as to all cases of advice (as distinct from standard of performance of surgical technique) by the medical profession with it being replaced by consideration of the actual individual patient from the perspective of the patient, rather than the medical profession.
This has to be welcomed by all patients, and it is hoped the Montgomery decision will be followed in Hong Kong.