Assessing the Tort Framework for Liability within Medical Negligence in the United Kingdom
15th February 2017
Assessing the Tort Framework for Liability within Medical Negligence in the United Kingdom
Queen’s University Belfast
Patient autonomy is regarded as one of the most valuable attributes of modern medical jurisprudence, therefore, the consideration of maternity care serves as an excellent window to examine the doctrine of informed consent, and its evolution in the UK.
This paper examines the UK Supreme Court decision in Montgomery v Lanarkshire Health Board, which deals with consent and information disclosure in medical treatment. The article begins by exploring the doctrine of informed consent, and then reflects on how the law has developed through the pragmatism of the courts. In the final section, discussion focuses on reform and special consideration is given to other jurisdictions including New Zealand.
It is established that a uniform principle of informed consent now exists in English Law. Yet, whilst acknowledging the now effective status of this doctrine, an assessment of its efficiency is questioned and potential difficulties with its future implementation in medical practice are outlined.
In 2014, the Office for National Statistics concluded that there were 695,233 live births in England and Wales. Typically, each of these pregnancies can be broken down into three trimesters and it is through each of these that gestational development and growth can be traced. However, flash forward to the delivery room. It is here, in the course of labour and delivery, that a series of questions about medical treatment are raised. In tandem with this, one obligation rests upon medical professionals which is paramount. Consent, and in particular consent which is informed.
It is increasingly recognised that patients should give informed consent to medical treatment. The difficult question, however, is working out exactly how much information patients need in order to be ‘informed’.
This article seeks to explain the basic proposition of ‘informed consent’ as it stands in the tort structure today. Focusing on the seminal case of Montgomery v Lanarkshire Health Board, this article will explain the evolution of the law on informed consent, a development which has been labelled in this article as the ‘three trimesters’ of informed consent. The article will seek to make note of issues, and possible reform, with the current law and in conclusion, will pose and attempt to answer the question; is it time for no to finally mean no in the birthing room?
One of the most important principles of medical law is that a competent adult patient must give consent to medical treatment. Established at common law, all persons have the right not to suffer bodily violation without their consent.
As a term ‘informed consent’ is a relatively recent phenomenon. The first use of the phrase was in the USA, anddespite a slow start reference to it has rapidly increased. One might question the importance of informed consent? Apart from providing a living for lawyers when it is called into question, patient autonomy is the “cornerstone of modern medical jurisprudence in the United Kingdom” and it is trite to know that a conscious adult of sound mind is entitled to withhold consent to treatment.
Whilst regarded as an effective concept, the word ‘informed’ largely tells us nothing about the amount of information required. The emphasis on ‘informed’ must refer to the quantity of consent required, and perhaps the quality of the information disclosed. Skegg, while generally supportive of the phrase, suggests that it may have been more explicit had it been expanded to “sufficiently informed consent”.
Pregnancy serves as an excellent window through which to examine this concept. Medical care or treatment cannot be imposed upon an autonomous and fully informed childbearing woman any more than it can be upon a non-child bearing one. Yet whilst maternity claims already represent the highest value, and the second highest number, of all NHS claims, it is arguably impracticable to require specific maternal consent to each and every step in the management of pregnancy or delivery. There is doubt as to where the line falls to be drawn, but as we will see, the Supreme Court indicates that consent must be adequately based before it will be regarded as sufficiently informed.
The ‘Three’ Trimesters – evolution of the law on informed consent
A. Doctor’s Know Best: The ‘First Trimester’
In a situation where so much can go wrong, it is unsurprising that this field of medicine attracts high levels of litigation. The reality is that not many childbirth cases actually make it to the courtroom. Nevertheless, in those cases that do, judges have sought to constrain the exposure of healthcare professionals within the framework of the negligence action.
Typically, a defendant cannot escape liability in negligence by simply arguing that they followed common practice. That being said, the courts tend to give wide latitude to those acting in a professional capacity. Initially, the adequacy of consent was determined by applying the Bolam test which recognised the inevitability of differences in medical opinion and accordingly, practitioners were not to be considered negligent if they acted in accordance with the standards of their peers.
In other jurisdictions the legal standards of consent developed along different lines. In Riebl v Hughes, the Canadian Supreme Court adopted the ‘prudent patient’ test, and whilst English law moved more slowly towards this, the first real hint of “judicial dissatisfaction” with Bolam appeared in Sidaway.
The decision in Sidaway, with its “hotch potch” of speeches , was far from the House of Lords’ finest contribution to the corpus of medical law. Most of their Lordships agreed that the Bolam test dictated the level of disclosure should be determined by the profession rather than the patient. However, Lord Scarman stated that disclosure was necessary. The “frailties of the decision” in Sidaway have long since been exposed, and possibly the most remarkable thing about Sidaway was that it was allowed to lurk in the background for so long.
B. Patient Centred Retreat: The ‘Second Trimester’
Surprisingly (or perhaps not), the momentum for a shift away from the professional test of negligence for non-disclosure came not from the judiciary, but from the medical profession itself. Thus, a General Medical Council (GMC) publication in 1998 advised doctors to provide “for each option”.
Whilst the case of Chester v Afshar was concerned primarily with causation, it contained relevant observations in relation to the duty of a doctor to advise a patient of risks involved in proposed treatment. It signalled a judicial willingness to scrutinise the level of disclosure and as Heywood contends, it “propelled the notion of patient autonomy” to centre stage.
Undoubtedly a breath of fresh air for claimant lawyers and anyone else concerned with patient rights, the judgment was not well received and continues to attract a steady stream of academic criticism. In a practical sense, defence lawyers certainly slept less soundly in the wake of Chester, but nonetheless the perceived consequences of the judgment did not eventuate.
C. Montgomery v Lanarkshire Health Board : The ‘Third Trimester’
Montgomery completes the ‘trilogy’ on the issue of negligent information disclosure. The Supreme Court sought to modernise the law on consent and firmly held that medical paternalism no longer rules.
The facts of the case are relatively straightforward. It concerned an allegation of negligent preoperative obstetric disclosure, whereby a diabetic mother claimed that she had the right to know of the potential complications that this might cause during her birth. The obstetrician involved was aware of the risk of shoulder dystocia but chose not to discuss it with Mrs Montgomery, who said she would have had a caesarean had she known the risks involved.
Mrs Montgomery based her argument on the judgment delivered by Lord Woolf, in Pearce v United Bristol Healthcare NHS Trust. There, the standard had been set as requiring that a doctor disclose any “significant risk that would affect the judgment of the reasonable patient”.
The Court was invited to depart from the decision in Sidaway, and notably, a seven-member panel of the Supreme Court were in agreement in allowing the appeal. The reasoning was “two-fold”: Sidaway had been misunderstood in practice and the paternalistic model of the doctor-patient relationship on which it was based had ceased to reflect reality. In place of the established Bolam test the Supreme Court substituted a new test relating to the materiality of risk involved and this is to be assessed by reference not to a responsible body of medical opinion, but by reference to a reasonable person in the patient’s position.
For a long time, the Courts turned a blind eye to Sidaway, which seemed to suggest that Bolam was the touchstone of liability in consent cases. Montgomery says that blind eyes were rightly turned and it is hard to ignore Montgomery’s subsequent application in Spencer v Hillingdon Hospital NHS Trust. Is it finally time for no to firmly mean no in the birthing room? All hands would point to yes.
A. Consent to Medical Treatment: Evolution and development of the Law in Non-UK Jurisdictions
As noted above, the ideal of ‘informed consent’ has developed far more readily in other jurisdictions, and one approach which warrants consideration has been developed in New Zealand. Whilst this development would certainly not suffice as a replacement for the law of torts, it does illustrate one possible way of supplementing it.
The approach taken is that every patient has the right to decide for himself whether to undergo treatment, even if the decision appears to be foolish or unreasonable. Since 1996 New Zealand has had a Code of Health and Disability Services Consumers’ Rights, with the force of law. Parliament, in the Health and Disability Commissioner Act 1994 (N.Z) and the Code of Rights, were not wary about using the term ‘informed consent’, unlike the highest courts in England. In New Zealand, controversies over the standard of disclosure and the causal link between negligent non-disclosure of risk and injury have largely been avoided under the Code.
The statutory framework is in many respects more significant than the detailed provisions of the Code. Nonetheless, some parts of the Code justify mention here. The heading Right 6 – ‘Right to be Fully Informed’ – gives a broad indication of what follows. The focus on what a ‘reasonable consumer’ needs to make an informed choice follows the clarity of what was laid down in Rogers v Whitaker. At its helm, the Code committed itself to the patient-centred standard of disclosure.
Such alternatives “warrant examination”. This is not because they are likely to be “suitable for transplantation”, they rarely will be. It is because they could potentially throw some relief into some aspects of the current English law, so as to achieve a fairer balance between the interests of the providers and users of health care services.
B. How has Montgomery altered the trajectory for informed consent and how will this be implemented?
Looking to the future, has the trajectory altered to increase the effectiveness of the tort framework for liability within medical negligence? Yes, this is a maintainable statement to make, and Montgomery as a landmark decision is a hyperbole that is perhaps justified.
To the credit of Montgomery, it is tenable that this has always been the standard set in medical practice. The Supreme Court did not apply the law retrospectively, but what they have done is apply the standard of the GMC at the relevant time to the facts of Montgomery. The GMC have made clear for many years what is expected of doctors in terms of consenting patients. The practical difficulty has simply been that the law has lagged behind. The Supreme Court have now “aligned the law” with the guidance on consent put forward by the GMC.
Made reference to in the judgment of Montgomery, the GMC advises that the doctor must tell patients if treatment might result in a serious adverse outcome, even if the risk is marginal. Montgomery can therefore be classed, not as the death knell for medical paternalism, but as a “long awaited obituary” which will help to bring the doctor-patient paradigm in line with existing medical practice. Surely this is something that we can see as an effective and timely alignment within the corpus of medical negligence. Whilst this is so, we must not ignore the possibility of further reform. Now that the law has aligned, how can we ‘birth’ it in such a way as to make it not just effective, but efficient as well?
Adopting a model such as the one outlined above is perhaps not the most efficient consideration. There are clearly some similarities between the New Zealand Code and the NHS Constitution’. However, there are also important differences, mainly that the Code is law and the Constitution is not. When medical lawyers are asked to advise on an issue, the Code is often the first source to which they look. Its role is very different from the Constitution, but it does pose the question as to whether implementation of a Code-like document should be replicated in the UK which would help to overcome some of the pitfalls of Montgomery.
One of the many problems that could be expected to arise in the wake of Montgomery is the issue of how much advice should be given, and the manner in which it is presented to the patient. The Supreme Court specifically noted that Mrs Montgomery was clearly an “intelligent person”, and the implication of this was that her understanding of medical risk was more sophisticated than that of the average patient. Is this type of background information relevant as part of the profile of the “reasonable person in the patient’s position”? Montgomery largely ignored this consideration.
The days are now gone when obtaining consent was left to the most junior trainee, tasked with getting the patient’s signature like a salesperson on commission. If viewed solely as a ‘medico-legal’ requirement, then there is a danger that obtaining the patient’s consent may become too formalistic. Unfortunately, the requirement for consent is presented in this way by some. Classically, by Lord Donaldson in Re W (A Minor)where he suggested that consent is analogous to a legal “flak jacket”.
O’Mahony comments that Montgomery brought this difficulty to light, and suggests that a proposal to replace the consent form with a ‘decision record’ would be better suited to serve not as another ‘meaningless document’, but as a mechanism that would ensure that patients who sign on the dotted line are not just complying with formality. Whilst this might be time consuming, so is defending a case based on an allegation of inadequate consent.
Importantly, and in particular when analysing informed consent through a maternity lens, giving of information is not, and should not, only be the domain of doctors. Midwives are equally the care providers and, as such, will be the providers of information as needed. The hierarchy of medical care is something which Montgomery, again, failed to consider, but importantly it is not one which should be forgotten. In terms of the doctor and midwife, it should not be an either or scenario.
The Supreme Court did recognise that this change in focus with regards to consent might not be welcomed by some healthcare providers. There is a real risk that, quite apart from the “patients as consumers” concern, Montgomery will turn out to be an enemy of patients’ rights. Doctors looking worriedly over their shoulders at the lawyers. However, as Heywood contends, there may be no need to press the panic button just yet.
The need for clear principles on ‘informed consent’ is essential, and has now been confirmed. The real impact of Montgomery, however, will undoubtedly hinge on how it is perceived by those at the coalface of NHS policy and practice. Clare Marx, president of the Royal College of Surgeons, stated that, along with improving the quality of surgical training, shared decision making is high on her agenda. The College’s recent report Good Surgical Practice emphasises the importance of this, and in an interview conducted by the BMJ Clare Marx was asked “are these traditional surgical attributes?” Her reply: “They will be.”
As this article has sought to convey, the advice from lawyers, therefore, ought to be no more than to keep at the forefront of doctors’ minds the specific needs of particular patients in the disclosure process, but other than that to continue adhering to the comprehensive guidelines already issued by the professional regulatory bodies.
It will be interesting to see how the ‘after-birth’ of Montgomery is delivered, and it is perhaps this that our attention should be directed to.
Table of cases (UK)
Bolam v Friern Hospital Management Committee  1 W.L.R 582
Chester v Afshar  UKHL 41
F v West Berkshire HA  2 A.C. 1
Montgomery v Lanarkshire Health Board  UKSC 11
Mrs A v East Kent Hospitals University NHS Foundation Trust  EWHC 1038 (QB)
Pearce v United Bristol NHS Trust (1998) 48 BMLR 118
Re W (A Minor)  4 All E.R. 627
Sidaway v Governors of the Bethlem Royal Hospital and the Maudsley Hospital  2 W.L.R 480
Spencer v Hillingdon Hospital NHS Trust  EWHC 1058 (QB)
Table of cases (other jurisdictions)
Riebl v Hughes 2 S.C.R 880
Rogers v Whittaker (1992) 175 CLR 479
Salgo v Leland Stanford Jr University 317 P.2d 170 (Cal App, 1957)
Schloendorff v Society of New York Hospital, 105 N.E. 92 (N.Y. 1914)
Table of Legislation (other jurisdictions)
Code of Health and Disability Services Consumers’ Rights (1996)
Health and Disability Commissioner Act 1994 (N.Z)
De Cruz P,Comparative Healthcare Law (1st edn, 2001 Cavendish)
Horsey K and Rackley E, Tort Law (4th edn, OUP 2015)
Jackson E, Medical Law: Text, Cases and Materials (3rd edn., OUP 2013)
Kennedy I and Grubb A, Medical Law (3rd edn, Butterworths 2000)
Mason J.K. and Laurie G.T, Mason and McCall Smith’s Law and Medical Ethics (9th edn., OUP 2013)
Clark T and Nolan D, ‘A critique of Chester v Afsar’ (2004) 34(4) OJLS 659
Salgo v Leland Stanford Jr University 317 P.2d 170 (Cal App, 1957)
 See Alasdair Macclean, ‘The doctrine of informed consent: does it exist and has it crossed the Atlantic?’ (2004) 24(3) LS 386, 387. A Westlaw search on 28/04/16 revealed that ten articles published in the last year contained ‘informed consent’ in their title.
 J. K. Mason and G. T. Laurie, Mason and McCall Smith’s Law and Medical Ethics (9th edn., OUP 2013) para 9.02
 P.D.G. Skegg, ‘English Medical Law and ‘Informed Consent’: An Antipodean Assessment and Alternative’ (1999) 7(2) Med. L. Rev 135, 138
 Peter de Cruz, Comparative Healthcare Law (1st edn., 2001 Cavendish) 355
 The Code came into force on 1st July 1996. See also, Joanna Manning, ‘Informed Consent to Medical Treatment: The Common Law and New Zealand’s Code of Patients’ Rights’ (2004) 12(2) Med. L. Rev 181