87. Click here to email this list of barristers to a colleague, Need more information about the above Barristers?Talk to one of our clerks: +44 (0)20 7832 1111. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The decision of the Court of Session was upheld by the Inner House. Montgomery sought damages against Dr McLellan who was responsible for her care during pregnancy and labour. Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients. It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. Justices. Coherence of Medical Negligence Cases. We are also asking for all instructions and documents electronically. Regulated by the Bar Standards Board. Alternatively, you can either email or use direct dial or mobile numbers. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. Applying this approach, Lords Kerr and Reed held that Mrs Montgomery should have been told of the risks of shoulder dystocia, and, further, that had she been told that she would probably have elected to have had a caesarean section. However, they rejected these arguments: “85. Lee, A., 2016. 2016. Your Bibliography: Chester v Afshar [2004] (UKHL). It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.”. 2016. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests. Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. It appears to us however that a degree of unpredictability can be tolerated as the consequence of protecting patients from exposure to risks of injury which they would otherwise have chosen to avoid. New Judgment On Patient Consent. Lords Neuberger, Clarke, Wilson and Hodge agreed. 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. They held that the correct position in relation to the risks of injury involved in treatment is that: “87. 2016. If you have any queries please do not hesitate to contact our Chief Executive Lindsay Scott (Call: +44 (0)20 7832 1115) or our Senior Clerk, Alastair Davidson (Call: +44 (0)20 7832 1181). Medicine, Patients, And The Law. Montgomery v Lanarkshire Health Board. 2 Doctors are now obliged to take ‘reasonable care to ensure that the patient is aware of any material risks involved … The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. However, the ringing terms in which Lords Kerr and Reed identified the basis upon which doctors are required to engage with their patients (and the counter-arguments that they set down to the propositions that ‘doctor knows best’ as regards disclosure) make clear that we are indeed a world where both doctor and patient are active agents. […] One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. Site by. The judicial tour d’horizon continued with a review of the developments brought about under the stimulus of the HRA 1998 and the Oviedo Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. Your Bibliography: UKSCBlog. Lords Kerr and Reed gave the lead judgment (Lords Neuberger, Clarke, Wilson and Hodge agreeing with them), and undertook a comprehensive review of the jurisprudence both in England and elsewhere. Please telephone us on our main line +44 (0)20 7832 1111. 2. It is important that the therapeutic exception should not be abused. Case Comment: Montgomery v Lanarkshire Health Board [2015] UKSC 11. Your Bibliography: Medicalprotection.org. In relation to the fourth point, we would accept that a departure from the Bolam test will reduce the predictability of the outcome of litigation, given the difficulty of overcoming that test in contested proceedings.
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