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Patient Consent and the Law: 3 Reasons Why It Matters - Paul Sankey, Enable Law

10/11/17. Montgomery and a Doctor's Duty in Advising – The Supreme Court's decision in Montgomery v Lanarkshire Health Board changed the law in relation to patient consent. Previously a doctor's duty to advise a patient was governed by the Bolam test. This meant advice was adequate if it accorded with the advice a responsible body of specialists within the same discipline would have given.

So in the lower courts, a failure to advise Mrs Montgomery of the increased risks to her and her baby from vaginal delivery as opposed to Caesarean section, given a 9-10% chance of shoulder dystocia, was found to be adequate. The advice she received was in line with what colleagues would have advised even though in the view of the obstetrician managing the birth, Mrs Montgomery would have elected for Caesarean section had she been more fully advised.

However, the Supreme Court rejected the application of the Bolam test to advice and consent. The new test is patient-centred. In brief it is what a reasonable patient like this patient would want to know[1]

Mixed Reactions Within the Medical Profession

There have been mixed reactions to the decision within the medical profession. Some doctors regard it as simply confirming their existing approach in practice. Certainly the Supreme Court in Montgomery thought it was bringing the law into line with what the GMC said medical practice should be. Others think it imposes an additional burden on the health service. They fear that the time allowed for patient consultations is too short for the more detailed discussion the Supreme Court expects. Further the law expects patients to be able to consider the risks and benefits of treatments at an earlier stage than is often the case in practice so that they are not faced with last-minute decisions. Often patients are not told of risks and invited to sign consent forms until the day of surgery. In at least one case, consent given immediately before an operation was found to be inadequate.[2]

There are, however, good reasons to support the Supreme Court's decision. The decision should not only lead to better patient care but may also save money for the health service. I suggest 3 reasons below.

Patient autonomy: The patient's right to decide

The first is respect for patient autonomy – that patients should be entitled to make informed decisions as to what outcomes they value most, what risks they are prepared to run and which treatment they prefer. This was the key factor behind the Supreme Court's decision.

In the past patients had been regarded as passive recipients of care. They placed themselves in the hands of their doctors and were thought to trust that the doctor knew best. This was medical paternalism. The high point was probably Lord Diplock's judgment in Sidaway. Of patients like you and me (of whom Lord Diplock clearly did not have a high opinion) he said, 'The only effect mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which, in the expert opinion of the doctor, it is in the patient's interest to undergo'. In other words patients are incapable of assessing risks and working out what treatments to undergo. Those decisions need to be made by much more clever people – their doctors.

Interestingly he took a different view for educated judges like himself. ‘..when it comes to warning about risks, the kind of training and experience that a judge will have undergone at the bar makes it natural for him to say (correctly) it is my right to decide whether any particular thing is done to my body, and I want to be fully informed of any risks there may be involved of which I am not already aware from my general knowledge as a highly educated[3] man of experience…’[4]

One might have thought that even in 1984 this was an unacceptably paternalistic an approach to the doctor-patient relationship. Lord Scarman in his dissenting judgment did. With the decision in Montgomery medical paternalism has at long last been replaced by patient autonomy.

Patients are now to be viewed as persons holding rights. They can be expected to weigh the risks of different treatment options, choose the risks they are willing to run and accept responsibility for their choices.

Understanding Patients' Wishes

There is a second very important reason for this approach, although it was not one considered by the Supreme Court. There is evidence to suggest that, whilst the medical profession is committed to high standards in diagnosis and treatment, it is not always good at recognising what patients actually want.

A report by the Kings Fund[5] in 2012 looked at the evidence. Its conclusions are surprising and alarming.

Many doctors assume that deciding what treatment is right follows from getting the diagnosis right. They also assume that working out what patients want is straightforward. The report suggests that both assumptions are wrong. As important as diagnosis is understanding what the patient wants to achieve. Understanding patient preferences is in fact complex.

Patient Preferences: the Evidence

The evidence uncovered by the King Fund shows that doctors are often mistaken in thinking they understand patient preferences. As the report puts it, 'They are not just misguided in their self-assessment, they are dangerously wrong. Indeed, there are breathtaking gaps between what patients want and what doctors think they want'[6].

For instance when asked to assess the importance of maximising life expectancy in women with breast cancer considering chemotherapy doctors thought this was the priority 96% of patients. When patients were asked the figure was only 59%. This suggests that doctors were misunderstanding the priority of 1 in 3 their patients.

Similarly when asked what percentage of patients prioritised preserving their breast, they thought it was 71%. When patients were asked, the figure was found to be 7%. This is a staggering discrepancy. It suggests doctors were misunderstanding 9 out 10 patients. That statistic alone justifies the claim that the gaps between what patients want and what doctors think they want is 'breathtaking' (or even 'breath-taking'.

In another study, men with benign prostate disease were more fully informed of the risks and benefits of surgery. The benefit was better urinary control. The risk was sexual dysfunction. 40% fewer chose surgery when properly informed. This suggests that doctors and their patients have different perspectives on the benefits of good urinary function as opposed to good sexual function.

Finally when patients with prolapsed discs were more fully informed of the risks and benefits of surgery, 30% fewer chose surgery. The most significant factor was the knowledge that in most cases their pain would resolve in time in any event. Interestingly this issue was the subject of a recent legal case. In Thefault v Johnson, a patient succeeded in recovering damages where her surgeon had inadequately advised her of the risks and benefits of surgery. He had given her quite a lot of information but most was inaccurate. One of his failings was to include in a letter advice that her symptoms would probably resolve anyway without surgery[7].

Cost Saving for the NHS

Surprisingly, therefore, a third benefit of a more patient-centred approach to consent is that there may be less need for surgery. This could mean a significant cost saving for the NHS. The examples cited above are by no means outliers. A review by the international Cochrane Review including 11 trials involving major elective surgery found that 20% fewer patients chose surgery once they were better informed of the risks and benefits.

As the report says, healthcare may be the only industry in which giving customers what they really want would save money.

So whilst many doctors are concerned that the new duty will require more time to be spent in discussion with patients, a cost the NHS cannot afford, the reality may be that more time spent early on avoids costs of surgery in many cases.


The decision in Montgomery v Lanarkshire Health Board in 2015 has changed the landscape in relation to a doctor's duty in advising patients. The reason behind the Supreme Court decision was the importance of respecting patient autonomy. But there are 2 other good reasons. One is that evidence suggests doctors are not necessarily as good at judging patient preferences as they think. A more patient-centred approach should mean patients get the treatment they would want if properly informed. The other is that greater respect for patient preferences may actually reduce the number of operations and ease pressure on the NHS.

Paul Sankey is a partner at Enable Law specialising in clinical negligence for Claimants. He has written and lectured widely about the law of patient consent.

[1] The law as stated by the Supreme Court is, 'An adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and her consent had to be obtained before treatment interfering with her bodily integrity was undertaken. The doctor was under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality was whether, in the circumstances, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient would be likely to attach significance to it.'

[2] Jones v Royal Devon & Exeter NHS Foundation Trust 2017.

[3] For those who wonder where he may have acquired views like this, Lord Diplock was educated at Whitgift School and University College, Oxford.

[4] Sidaway v Board of Governors of Bethlem and Maudsley Hospital & Others 1985 AC 871

[5] Al Mulley, Chris Trimble, Glyn Elwyn, 'Patient Preferences Matter. Stop the Silent Misdiagnosis', The Kings Fund 2012

[6] Ibid, p5.

[7] Thefaut v Johnson [2017] EWHC 497 (QB)

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