In March, the Supreme Court handed down a unanimous decision in the Montgomery v Lanarkshire Health Board case. 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.
What does this mean for doctors and patients, and the relationship between the two? Is it a landmark case that transforms the law around medical negligence? Is the ‘Bolam test’ finally dead and buried? There’s already a lively debate amongst the legal and medical professions, which I’m sure will continue as the case law evolves in the light of the judgment. So, with the caveat that I’m not a lawyer or a clinician, here’s a quick take on what you need to know.
Follow our guidance!
Firstly, and above all, follow our existing guidance! The GMC intervened in this case to explain the development and content of our publications Good medical practice and Consent: patients and doctors making decisions together. We were pleased that the Court endorsed the approach advocated in our guidance and in our view the judgment brings the law up-to-date with good medical practice. Central to this is the principle that the relationship between a doctor and a patient should be a partnership based on openness, trust and communication.
Discussing risk with a patient shouldn’t be limited to a numbers game; it should be part of a dialogue. The key is to understand what matters – or is likely to matter – to the individual patient. The judgment describes this in terms of ‘materiality’: “A material risk is one that a reasonable person in the patient’s position is likely to attach significance to, or if the doctor is or should reasonably be aware that their patient would be likely to attach significance to it.” You should do your best to understand the patient’s views and preferences and the adverse outcomes they are most concerned about. Our guidance includes specific advice on discussing side effects, complications and other risks.
Meaningful, clear conversation
The Supreme Court’s judgment emphasises that discussing risk with a patient is not about bombarding them with information. It’s not about ensuring you cover every conceivable risk. It’s about having a meaningful, clear conversation.
There are cases where you can withhold information about a risk – for example, in cases where you judge that disclosure would be seriously detrimental to a patient’s health. But the Supreme Court judgment makes clear that this ‘therapeutic exception’ should be used sparingly and not abused. You are also not obliged to discuss risks with a person who makes it clear that they would prefer not to discuss the matter. Again, our guidance gives advice on what to do in this situation – as always, you should keep a record. And you are not, of course, expected to explore risks where urgent treatment is needed and a patient is unconscious or unable to make a decision.
For obstetricians, there are particular implications about maternal choice – Lady Hale’s concurring judgment highlights that doctors should advise on the pros and cons of vaginal delivery and caesarean section in any situation where either mother or child is at greater risk from vaginal delivery.
The Bolam test
So what of the long-held test from Bolam v Friern Hospital Management Committee (1957) of judging a doctor’s actions by what a responsible body of medical opinion accepts? Arguably, the case law had already moved a long way beyond this and towards patient involvement and autonomy – the legal annex to our consent guidance gives a summary of significant case law and legislation. This judgment is clear that Bolam should not be applied to discussing risks with patients. It confirms beyond doubt that – in law as well as in good practice – patient views and shared decision making are of critical importance.
The judgment is explicit that consent is about so much more than asking for a signature on a form and accepts that it takes time and skill to do properly. But this is time well worth investing, for improving the quality of patient experience, the outcome of treatment and decreasing the likelihood of resulting unhappiness, complaints and litigation.
We are all patients, and the friends and families of patients. We all know healthcare is risky. To quote from the judgment: ‘It would … be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea… was always a questionable generalisation… To make it the default assumption on which the law is to be based is now manifestly untenable.’ No one is suggesting that risks are easy to explore, understand or evaluate – for any of us – but what this case does put beyond doubt is that this must be a partnership approach, not a paternalistic one.
Our guidance and learning resources are here to help. Our regional liaison service and devolved offices also work with medical students, doctors, employers and the public to bring the guidance to life through case studies, exercises and scenarios.
Mary Agnew is Assistant Director of Standards and Guidance at the General Medical Council