The Tort Framework for Liability within Medical Negligence in the UK is Effective and is not in need of Reform
16th June 2017
The Tort Framework for Liability within Medical Negligence in the UK is Effective and is not in need of Reform
Author: Megan Somers
Queen’s University, Belfast
Society is a carousel of change; a never-ending stream of advances and modernizations. This carousel never stops turning, and it is essential that the law move with it. In this evolving modern-day society that we live in, patient awareness has gradually made fundamental developments; a huge part of this to be attributed to growing technological advances. With a world wide web of information readily available at the touch of a button, there is seldom reason for a patient to remain uninformed and for the law to remain cemented on the ‘doctor knows best’ approach. The days of consent being a mere signing of a form have expired.
This article considers the law on Informed Consent and how it has progressed in recent years. The focus of the article is based on the contemporary case of Montgomery and it discusses whether this case has stimulated effective reform for liability within medical negligence in the UK.
The article draws on examples of how reform in this area could be further enhanced by taking example from other jurisdictions: Canada, and the US.
Special significance is given to where this reform will lead us in 5 years from now.
‘I believe that I had the right to know of all the risks surrounding Sam’s birth and I am pleased that the Supreme Court has recognized this. I hope this means that other parents will not have to go through what I have gone through’Nadine Montgomery
This statement epitomizes what the decision in this ‘landmark case’ has accomplished; a new era for patient autonomy and the setting of precedent that bears the potential to generate ‘a more modern-doctor patient relationship.’ The ground-breaking ruling imposed the reform that doctors now must now take reasonable care to ensure that patients are entirely aware of any risks associated with the treatment that are recommended, and that this decision is then one for the courts to assess; not a question for medical experts, the former standard under Bolam.
This reform enshrines in law, the principles that were already set out in the GMC’s guidance on consent in 2008. Fred Tyler, described the decision as ‘the most significant medical negligence judgement in 30 years’ By abandoning Sidaway, and the downright pre-historic approach of Bolam, this new doctrine ‘places the force of the law behind the common-sense notion that every patient of sound mind has the right to be armed with all of the information that might be relevant to their decision-making process.’
In Post-Sidaway cases such as Pearce, v United Bristol Healthcare NHS Trust, Chester v Afshar, and Portsmouth NHS Trust v Wyatt, it was evident that this catalyst of modification was already unravelling. Under the stimulus of the HR Act 1998, the courts had become increasingly conscious of the extent to which the common law reflects fundamental values.Lord Scarman highlighted in Sidaway, this includes the value of self-determination and Montgomery ‘illustrates courts growing appreciation of patient self-determination.’ The courts were, intentionally or not, already embarking on the execution of reform in the law on Informed Consent.
An arguably inevitable fate; the courts have simply embraced what was a pre-determined outcome in a modern society with a multitude of devices in place to broaden patient awareness. For instance; the internet, and patient support groups. Times have evolved towards a rejection of patient passivity, where patients should no longer be regarded as ‘uninformed or incapable of medical matters.’
This article draws upon the potential implications of this reform and prospective remedies that could aid to enhance it.
It may now be mandatory for doctors to have accessible to them, all relevant and contemporary information when they engage with a patient on this matter. This will result in immense pressure exerted on hospital budgets and resources to provide any treatment that the doctor recommends, and the patient subsequently selects. There is no refuting that this poses quite the ethical test for doctors; on the grounds that it shouldn’t influence the doctor’s advice to the patient with regards to their honest counsel to the patient of their sincere opinion on the superior option. From a moral standpoint, there is no room for predisposition by advocating an option whilst bearing the economic consequences for the health service in mind. This is easier said than done; it would be natural for the doctor to be mindful of their concern for how the hospital can be expected to provide alternative treatments which are not routinely available in the UK, or funded by the NHS.
In addition, the cost of the resources used for these ‘advanced’ treatments may be to the detriment of others who require them more urgently, rather than as a mere ‘option.’The challenge for the doctor will be in their ability to isolate this concern from their honest medical guidance, taking no external factors into consideration.
The concerns of communication and time also must be taken into account, neither of which are in ample supply for physicians. Doyal comments that ‘the real enemy of proper Informed Consent is the insufficient resources to train clinicians to communicate more successfully with their patients and inadequate staff to allow enough time for the essential communication to occur.’ One method to facilitate this would be to follow the standard set out in the Canadian application of Informed Consent and empower doctor’s assistants, nurse practitioners, and experienced nurses to discuss the risks with patients- to be further reviewed and advised by a doctor. The factor of the economic cost of this aftercare is problematic, but if made achievable, it would overall aid to combat the ‘communication and time’ struggle.
It is necessary to address whether the full understanding of Informed Consent requires above cognitive capabilities. Wheeler comments that ‘improving comprehensibility alone will be a significant challenge.’Doctors will consequently be required to learn how to illuminate risks in a language, which is ‘digestible’ for each particular patient, and can relate to national statistics. The question of whether this obtainable ought to be asked, and if so, it has to be further questioned if it will even be sufficient. For instance, Agard and colleagues question the appropriateness of striving for high standards of consent with cardiological research. They argue that even competent patients may feel incapable of understanding the information that they are required to comprehend in order to commit to ‘proper’ consent.Perhaps this post-Montgomery modified doctrine of Informed consent is an impractical concept that seems plausible from a theoretical stance, but lacks realism. Rather than doctors ‘going through the motions’ of obtaining consent, perhaps more time should instead be allocated to the provision of a high standard of medical care and research.
However, this opinion can be juxtaposed with McCrory’s viewpoint who contends that this will not necessarily be the case as ‘empirical research suggests that the understanding of patients improves’ when the information is structured ‘according to their needs’ and with ‘good communication.’ He emphasizes that doctors must work in ‘partnership’ with their patients.
What is reasonable for the doctors to be aware of/recommend to patients?
This reform shouldn’t escalate into doctors now being held to an unrealistic standard of cautioning patients of every trivial risk associated with a particular treatment. This would unlock the floodgates to an infiltration of medical negligence claims and instigate a low morale for doctors at the receiving end of this criticism.
The Supreme Court has in fact recognized that not all healthcare providers will welcome the decision in Montgomery, but have concluded that this progression towards a ‘more patient centred disclosure’ is essential so that ‘even those doctors who have less skill or inclination to communication, or who are more hurried, are obliged to pause and engage in the discussion in which the law requires.’ It is paramount that courts regulate how far medical professionals ‘can be expected to be aware of the most recent research literature.’ A disputatious question in relation to this new doctrine is how far it should be applied to recommendations of ‘non-treatment’; it is impractical for a doctor to now identify a number of further tests/treatments that could ‘begin immediately,’ and ‘any risks that may be associated with a delay.’
However, these potential issues do not appear to be a cause for concern judging by the decision in a recent case in 2014, where a woman was not warned about a 1 in 1000 risk. Justice Dingemans commented that the decision in Montgomery ‘is not authority for the proposition that medical practitioners need to warn about risks which are theoretical and not material.’
The therapeutic exception
This exception may expose doctors to further criticism as it challenges the concept of patient autonomy. ‘Respect for patient autonomy in clinical practices is of great moral significance. Not to take this right seriously threatens lasting damage to the medical profession.’ This exception and the withholding of information from patients will perhaps ‘alter the balance between doctor and patient’; the balance that had just been redressed by Montgomery.
However, in keeping with striking a balance between the rights of doctor and patient, the courts have made this exception limited- they emphasized that this exception should not be used simply where a doctor thinks that a patient is liable to make a choice that they believe to be contrary to the patients best interests. Lady Hale, in the concurring judgement in Montgomery, pointed out that the obstetrician’s view didn’t appear to be a purely medical judgement, but a ‘judgement that vaginal delivery is in some way preferable in a caesarean section; so much so that it justified depriving the pregnant woman of the information needed to make a free choice in the matter.’
A remedy for additional reform in this area would be for doctors to obtain training to gain the skill of being able to differentiate between vulnerable patients who will not wish to obtain further information from the doctor whom they clinically depend out of fear, to a person of sound mind who truly doesn’t wish to know. At present, a doctor is not equipped with the tools to deal with this as the view is that ‘physicians are first and foremost trained to diagnose a disease; the training of physiology is second to that.’
Floodgates VS a reduction in Litigation
Montgomery has triggered a ‘profound fundamental change’ in the rights of patients and ‘in the grounds upon which litigation can be conducted.’ Therefore, in terms of what the future will hold, this decision is likely to result in ‘a number of existing medical negligence actions being developed.’
Both medical and legal professions will face challenges as to how exactly this case will change practices. Reference is made to the fact that the GMC guidance was set out in 2008 and Sam Montgomery was born in 1999, hence the argument can be made that cases going back many years that had previously failed, but did not argue informed consent, can be brought to light again. Maternity care is already ‘infamously litigious’ and ‘accounts for nearly 50% of all NHS negligence claims.’ The Supreme Court recognizes that Montgomery could increase litigation by women who will claim that they were not adequately informed of the risks during birth. 
On the other hand, where the patient ‘truly understands’ the risk and continues to makes that choice, this will actually reduce litigationas ‘the proper disclosure of rights should protect the medical profession from litigation and lead to patients being responsible for their own actions.’ Yet, as previously mentioned, the limits on what the doctor can be reasonably expected to warn the patient of need to be set; Lord Neuberger points out that a 1% risk of an earache is very different to a 1% risk of death, but the difficulty is that plenty of people may be prepared to litigate over the former.
Other jurisdictional influence
To extend the modification of the law on Informed Consent in the UK, perhaps initiative can be taken from other jurisdictions.
As previously referred to briefly, the UK should consider endorsing the Canadian doctrine of the 1980s ‘modified objective’ that since, has seen dramatic shifts in favour of the patient. It would be required to spend more time with patients and discuss prognosis, proposed treatment, and reasonable alternatives. Echoing this improved communication method would yield similar results as it has in Canada; fewer successful cases in negligence, yet better protection for patients. A seemingly win-win solution, with the downfall being the cost.
The UK could also take example from the guidance set out in the US Joint Commission. It emphasizes that patient understanding is of top priority and some of its recommendations include: the use of interactive media and graphic tools to enhance the decision making process, the aid of medical interpreter services, the use of everyday language, and teach back methods to ensure full patient understanding. Communication models are also provided for physicians to evaluate patient understanding. Again, the obstacle is the cost. It is not realistic that such reforms can be authorized due to the current economic state of the NHS.
Pending on the 2020 election results,the re-election of the Conservative party may eventually result in the privatization of the NHS.The consequence of this may possibly mean that this advance in Informed Consent may only be for those individuals who can afford it. This would defeat the objective of improved patient autonomy by instead, encouraging a class division; those who can afford the luxury of Informed Consent, and those who can’t.
Looking to the future
The GMC is currently focusing on outlining the potential scope of the new guidance on consent. This guidance shouldn’t have to be contingent on the common law to be recognized like it has in the past; it is not practical to wait until a fact-specific case materializes before this guidance is implemented. The courts ought to be proactive; not reactive. This is a necessity if they wish to sustain this flourishing modernization of the law towards patient autonomy.
This future guidance by the GMC should primarily be implemented at a policy level in hospitals, introducing trial runs in order to establish what elements of the guidance work in practice and where there is still opportunity for improvement. This would also counteract the ‘shock factor’ for society if this guidance were to be enacted by parliament into legislation. If this reform is in fact to be introduced through legislation, it should be done so at a national level. This legislation should emulate Montgomery, which brought Scots law into harmony with recent English cases and provided the Supreme Court with the opportunity to firmly state that the ‘need for informed consent is now part of English law.’ At a regional level, the law on Mental Health in NI is in need of reform because distinct from the other parts of the UK, there is no current primary legislation in place in this area. The decision making for patients without capacity in NI should be made by legislation, not common law.
Whilst the law on Informed Consent has undoubtedly advanced ‘towards a more patient-centred approach to medicine’, there are still evident gaps present indicating that further reform is required as we move forth into this contemporary era of Informed Consent.
David Spencer v Hillingdon Hospital (2015) affirms the effectiveness of Montgomery in enhancing patient autonomy as the healthcare provide in this case was found negligent after a failure to warn the patient of a risk following surgery.
It will be intriguing to read the GMC’s future guidance on this matter and even more compelling to see whether this guidance will be followed, and if so, whether it will be through the Common Law, or implemented into legislation.
 ‘Nadine Montgomery wins £5M from NHS Lanarkshire over brain damage to son’ (BBC News, 11th March 2015) <http://www.bbc.co.uk/news/uk-scotland-glasgow-west-31831591> accessed 1st May 2016
 K McCombe and D.G. Bogod, ‘Paternalism and consent: has the law finally caught up with the profession?’ (2015) 70(9) Anaesthesia 1016
 Jennifer Fong Ha ‘Doctor-Patient Communication: A Review’  Ochsner, 38
 L Doyal ‘Good clinical practice and informed consent are inseparable’ (2002) 87(2) Heart 103
 Kenneth G. Evans, ‘Consent: A guide for Canadian physicians’ (4th edn., May 2006) 11
 John G.Culhane ‘Toward a mature doctrine of Informed Consent: Lessons from a comparative Law Analysis’ (2012) 1(2) British Journal of American Legal Studies 551-558
 Robert Wheeler, ‘The new age of consent’ (2015) 97(6) The bulletin 250
 Adam Chipindall, ‘The rippling effect of Montgomery v Lanarkshire Health Board’ (Jordan Publishing, 5th May 2015) < http://www.jordanpublishing.co.uk/practice-areas/pi-and-civil-litigation/news_and_comment/the-rippling-effect-of-montgomery-v-lanarkshire-health-board> accessed 3rd May 2016
 L Doyal, ‘Good clinical practice and informed consent are inseparable’ (2002) 87(2) Heart 103