He was convicted and received a mandatory life-without-parole sentence. As seen in clinical practice, it was acknowledged that some patients will express a wish to not be told of the risks of a treatment or procedure or to not make a decision. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach a significance to the risk. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done. Finally, doctors criticised the focus of patient autonomy over medical paternalism. See: This practice refers back to the ruling of Lord Diplock in Sidaway who advised that if a specific question was asked, it should be answered. The doctor’s normal practice was to give ECT without a relaxant and without any physical restraints; the doctor would support the patient’s chin and shoulders while nurses stood at either side of the treatment couch to prevent the patient falling. vLex Rating. In making their ruling, the different Lords had differing opinions of the case and what the duty of a doctor was in terms of discussion and consent. It was the product of the very risk that she should have been warned about when she gave her consent. Mr Afshar appealed to the Court of Appeal which again found in favour of Miss Chester. Concerns for his condition were high and he was placed under specialist nursing care. Despite expressing concern to her consultant about whether she would be able to deliver her baby vagi… His comments also included the concept of the therapeutic exception where it would be acceptable for a doctor to withhold some information if it was felt that disclosure would harm the patient. With regards to the disclosure of the risk of fracture, it was the doctor’s practice not to discuss the risk unless directly asked, in which case he would say the risk was very slight. State v. Montgomery, 181 So. Others have raised questions about the implications for the legal treatment of clinical judgment, suggesting that it represents “a radical move away from English law’s traditional respect for clinical expertise.”9. Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge. He finally appealed to the House of Lords. Montgomery was retried. Legally, consent law has been clarified and aligns with current GMC guidance, and the Montgomery test has already been applied in several cases. Lord Scarman, however, expressed a different and more patient-centred opinion but, as his was a minority view, it did not affect the overall rejection of the case. The relevant guidance from the GMC was reviewed and this supported the argument that it was the doctor’s role to provide a patient with all the information to allow them to make a balanced judgement between different options. The Lord Justices found that, in this case, her surgeon had not been negligent in not informing her of the risk of paraplegia. Over this time the blood flow through the umbilical cord was compromised and Sam suffered a significant hypoxic injury which resulted in brain damage and cerebral palsy. The pain could be severe and she had experienced episodes of being unable to walk or control her bladder. NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. Making sure that patients understand all the information they need to make a decision will inevitably take longer. The test of materiality defined in the Montgomery ruling was whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”1 The solicitor representing Montgomery spoke of the decision as having “modernised the law on consent and introduced a patient focused test to UK law.”16. This case was brought by Mr and Mrs Pearce with regards to the obstetric advice she was given during her fifth pregnancy which ended with the stillbirth of her daughter, Jacqueline, in December 1991. She expressed general concerns throughout her antenatal care. This case involves a patient, Bolam, who sustained injuries during a course of electro-convulsive therapy being used as a treatment for depression. Doctors at the coalface have received little official direction on how their practice should change in light of the ruling. Lanarkshire Health Board was found liable in negligence as Mrs. Montgomery was not She expressed general concerns throughout her antenatal care. The defending Health Authority put forward the argument that even if Dr Horn had attended to Patrick, she would not have intubated him and this course of action would have been in keeping with a body of medical practice. Facts of the case In 1963, Henry Montgomery was found guilty and received the death penalty for the murder of Charles Hunt, which Montgomery committed less than two weeks after he turned 17. When the new pain developed, her surgeon suggested that a cervical cord decompression would alleviate her symptoms. In his ruling, Lord Hope stated: The injury was intimately involved with the duty to warn. He began to worsen and Dr Horn was called but did not attend. You can also use your College Personal ID (PID) if you have one. With Elizabeth Montgomery, William Daniels, Cliff Potts, Rosemary Murphy. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. GMC guidance says that the consenting process is not a snapshot but an ongoing process. It should be viewed differently from the process of diagnosis or treatment. All seven of the Justices supported the appeal. It was argued by his mother that there had been negligence in his care as, had Dr Horn come to review her son and had he been intubated, then his brain damage and death could have been prevented. A patient was to be informed of any common or serious potential consequences or complications and the determination of what was deemed common or serious was for the doctor to decide, not the patient. RCOG’s difficulty in providing guidance perhaps reflects the unique nature of obstetrics—essentially helping two patients through a normal and inevitable physiological process. This would have meant that she would have had her surgery at a later date rather than choosing not to have it at all. Maddox v. Montgomery United State Court of Appeals Eleventh Circuit 718 F. … The Case. The ruling overturned a previous decision by the House of Lords,2 which had been law since at least the mid 1980s.3 It established that, rather than being a matter for clinical judgment to be assessed by professional medical opinion, a patient should be told whatever they want to know, not what the doctor thinks they should be told. This is an Open Access article distributed in accordance with the Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, which permits others to distribute, remix, adapt, build upon this work non-commercially, and license their derivative works on different terms, provided the original work is properly cited and the use is non-commercial. The ruling does not include any specific ‘percentage cut off’ for a risk as this cannot be relied upon to identify what risks could have such an impact on a reasonable patient’s judgement. Mrs Sidaway was suffering from pain in her neck, right shoulder and arms and sought a treatment that might relieve this. Mr Afshar had a duty of care to warn Miss Chester of this risk but he did not. 2783, 171 L.Ed.2d 637 (2008). In Mrs A v East Kent Hospitals University NHS Foundation Trust (April 2015),25 the claimant’s baby, who was conceived using intracytoplasmic sperm injection, had a chromosomal abnormality. The Lords proposed that the scenario where the action was thought to be illogical would be a rare one. Patrick deteriorated and suffered a cardiac arrest from which he was resuscitated but he had sustained significant brain damage. As stated by Lady Hale in the ruling: ...it is not possible to consider a particular medical procedure in isolation from its alternatives. These “emergencies” might be exempt from the Montgomery ruling, depending on their nature and timing, but complications of labour (such as sudden and profound fetal distress or major maternal haemorrhage) are not, even though, as was noted in the judgment, choices about management of labour cannot generally be deferred. Having difficulty registering or logging in? It was felt that, despite not being told of the risk of paraplegia, Mrs Sidaway had been given sufficient information to enable her to make a decision about proceeding with the treatment. The case was found for the defence and the ruling introduced a legal test that a claimant would need to satisfy in order for medical negligence to be proved. He felt that the practice of gaining consent should be viewed differently from that of the skill of diagnosis or carrying out a treatment where the body of medical opinion does hold weight. The Supreme Court of the UK announced judgment in her favour in March 2015. This test has three parts which, as stated by Lord Clyde, must be met: First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. Bailii, Bailii Summary, SC Summary, SC, WLRD Scotland Citing: At Outer House – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010 Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the … It was felt that if she had proceeded with the surgery at a different time then it may have been successful. The Patient’s Charter: What Users Think. All were in agreement that there was a body of medical opinion the supported the use of ECT without relaxants and without physical restraints as it was thought these could compromise the airway or increase the chance of injury. Supreme Court decision changes doctor-patient relationship forever. So the Montgomery principles have been known—or should have been known—by doctors for many years. Guidance in effect at that time from the GMC,17 BMA,18 NHS, and the Scottish Office19 supported a doctor’s duty to disclose relevant information and risks. SWC and JEN are the guarantors. In conclusion, it is important to remember that this ruling involves both the exploration and discussion of risks and options, not just risks alone. . 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. Documentation of this discussion and the options offered is important and is required by the GMC guidance on the same. Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana. In this case, a Lanarkshire woman (Mrs Nadine Montgomery) whose baby suffered brain damage during birth was awarded £5.25m compensation. In this case, the assertion that Dr Horn would not have intubated Patrick if she had been present was felt to be a logical one and, therefore, not negligent. Doctors may have been treating patients as they understood the law to be, as in the Sidaway case, but the Supreme Court has told us that this was wrong3 and that anyone who practised according to Sidaway was also wrong. But doctors should have already been following GMC guidance, which highlights the importance of communication.13. Miss Chester had the spinal surgery and suffered a worsening in her symptoms. The Montgomery case in 2015 was a landmark for informed consent in the UK. Log in using your username or email address. The involvement of seven justices in this final appeal is of particular importance as this is the number of justices required to change or overrule a previous House of Lords ruling; in this case, the ruling in Sidaway. Healthcare policy should cover, for example, which treatments should be available and how consent procedures should be handled.17 The doctor’s duty is simply to treat patients according to their interests, which might include being given more information than usual. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty. Two years after the Supreme Court’s decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice. To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not discussed and a plan was made for vaginal delivery. As the risk of serious consequence was felt to be so small, it was not discussed. He appealed to the Louisiana Supreme Court, and his conviction was overturned because of community prejudice. If you are unable to import citations, please contact Directed by Boris Sagal. But doctors must judge what is appropriate for each patient and how their exercise of judgment might be assessed by the courts. These summaries are the opinion of the author/s, not the court, and may contain errors. The Montgomery case firmly rejected the application of Bolam to consent, establishing a duty of care to warn of material risks. The consultant stated that the risk of shoulder dystocia occurring in a woman with diabetes was 10% but that the risk of a serious consequence from said shoulder dystocia was 0.2% for a brachial plexus injury and less than 0.1% for hypoxic injury. It is understood that an application to appeal to the Supreme Court is being presented and if allowed, some of the issues raised in this article may be further discussed. Mrs A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 (QB). Contributors and sources: The authors were organisers (ET, WW, JEN) and participants (SWC, AS, ESC) of an event in the Edinburgh Medical Debates series on the ethical and legal impact of the Montgomery case.6 ET is a medical student at the University of Edinburgh and was primarily responsible for research and initial drafting of the manuscript; SWC is a researcher in bioethics and was responsible for subsequent drafting, critical revisions, ethical analysis, and part of the legal research; ESC, WW, and JEN are clinicians and were responsible for conceiving the idea for the manuscript, critical revisions, and obstetric medicolegal advice; AS is a barrister and QC in both Scotland and England, specialising in medical negligence, and was responsible for legal advice, analysis, and critical revisions. She argued that had she been warned of the risk of this happening she would have taken longer to consider and reach her decision to have the surgery. The law on consent has progressed from doctor focused to patient focused. Montgomery and informed consent: where are we now? Thus, although the test is focused on patients, doctors are not liable for every omission of disclosure to which a patient later objects.”25. Previously, the Bolam test14 in England and the Hunter v Hanley test15 in Scotland were used to determine what should be disclosed. We do not capture any email address. The Montgomery test places a legal obligation upon clinicians to provide information to patients about their treatment. The Montgomery v Lanarkshire case of March 20151 drew fresh attention to informed consent. Post navigation. In 1999, Nadine Montgomery was pregnant with her first child, Sam. Shaw v Kovac (October 2015)24 concerned a patient who died in 2007 after a transaortic valve implantation, which was then still the subject of clinical trials and not fully approved. These tests ask whether a doctor’s conduct would be supported by a responsible body of clinicians. But allocation of health resources should be tackled systematically rather than individually. Copyright © 2020 BMJ Publishing Group Ltd     京ICP备15042040号-3, , professor of maternal and fetal health and director of Tommy’s Centre for Maternal and Fetal Health. The particular surgery was known to have a 1-2% risk of worsening her symptoms even if performed safely and competently. Mrs Sidaway alleged that, in the discussion of the decompression, she was not warned of the risk of paraplegia as a complication of the procedure. Log in using your username or email address. He took the view that it was the patient’s right to make a decision about whether to proceed with a treatment or not, and the only way they could make that judgement was to have been presented with all the pertinent information. But the ethical and legal position is clear: doctors must not withhold information simply because they disagree with the decision the patient is likely to make if given that information. All authors approved the submission of the manuscript. And, in any event, the Supreme Court does not need to cite authority when revising or limiting its own case law. Clark v Greater Glasgow Health Board [2016] CSOH 25. What was worse was the treatment by the hospital staff, police and the court system when she reported it, and the afttermath of the culprit's apprehension. Justices. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not … These issues are not always pursued, but obstetric litigation practice has noticeably changed, making professional training and clarity with respect to guidelines an even higher priority. 1992. professor of maternal and fetal health and director of Tommy’s Centre for Maternal and Fetal Health. 11 Mar 2015. This stands even if other doctors may have acted in a different way. The discussion and involvement of the patient in the planning of their care mirrors the approach of shared decision making. Her obstetrician had not disclosed the increased risk of this complication in vaginal delivery, despite Montgomery asking if the baby’s size was a potential problem. Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section. This would mean that a patient who asked specific questions would potentially be given more information than a patient that did not ask questions. This would have meant that although failing to see Patrick represented a breach in her duty of care, it was not a breach that resulted in his eventual death. The judge considered the Montgomery ruling and found that failure to inform the patient was a breach of the duty of care. This decision followed a 16-year legal fi ght which concluded with Mrs Montgomery’s claim being upheld by the Supreme Court. Written and curated by real attorneys at Quimbee. Faculty of Dental Surgery Executive Board, Eligibility Criteria to join the Faculty of Dental Surgery, Diploma in Expedition and Wilderness Medicine, Faculty of Travel Medicine Executive Board, Eligibility Criteria to join the Faculty of Travel Medicine, Good Practice Guidance for Providing a Travel Health Service, Eligibility Criteria to join the Faculty of Podiatric Medicine. Ethically, it clarifies the existing shift towards a more cooperative approach in the consultation room. Mrs Pearce argued that had she been informed of this risk she would have opted for a Caesarean section as this would have posed least risk to her baby. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Judgment date. The appellant, Nadine Montgomery, gave birth on 1 October 1999 and, as a result of complications during delivery, her son was born with cerebral palsy. UKSC 2013/0136. She had seen her consultant at two week’s over her due date on 27th November to request induction or a Caesarean section. http://creativecommons.org/licenses/by-nc/4.0/, http://www.bmj.com/content/350/bmj.h1481/rr-23, Brighton and Sussex University Hospitals NHS Trust: Consultant in Stroke Medicine, Practice Plus Group: General Practitioner, Rush Hill & Weston Surgeries: Salaried GP, Herefordshire and Worcestershire Health and Care NHS Trust: Consultant Psychiatry, Women’s, children’s & adolescents’ health. Competing interests: We have read and understood BMJ policy on declaration of interests and declare the following interests: AS represented the GMC in the Supreme Court in the Montgomery case. 1966). All other authors have nothing to declare. Consequently, he was born with a dyskinetic form of cerebral palsy. The Montgomery test was defined in the case 1of Montgomery v Lanarkshire Health Board. Summary of implications of Montgomery What is the Montgomery Test? In 1999, Nadine Montgomery was pregnant with her first child, Sam. Obstetricians urgently need guidance. Montgomery sought damages against Dr McLellan who was responsible for her care during pregnancy and labour. On 2nd December her daughter was found to have died in utero. Lord Diplock felt that the right amount of information to be disclosed was to be decided by the medical profession and that the right of the patient at that time was a right to be treated in the best way that a doctor thought they should be. It was also noted that the consultant stated that the risks would have been mentioned if specific questions had been asked. Today’s patients can expect a more active and informed role in treatment decisions, with a corresponding shift in emphasis on various values, including autonomy, in medical ethics. He also added that if a patient asked a question then it should be answered. Patients are not always aware of the facts of their treatment after consent related discussions,26 and they are influenced by the way in which information is presented (the “framing effect”).27 But the difficulties of conveying information about treatment and risks should not be taken to indicate that patients are incapable of understanding medical information or that patient autonomy in decision making is meaningless. Have been warned about when she montgomery case summary raped, Ellen thought it was noted... Risk of worsening her symptoms even if performed safely and competently her favour in March 2015 consultant that... Uk announced judgment in her favour in March 2015 during an injection being given by her when! Cases it is reasonable to not discuss risks but these circumstances are as! Clash of values—patient autonomy versus medical paternalism first case found on behalf of Miss Chester of discussion... 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Sokol DK not felt to constitute a significant risk Sidaway was suffering from pain her! Or treatment 2015 ] EWHC 1058 ( QB ) Miss Chester consented to to make a decision inevitably! The Sidaway ruling House of Lords dismissed the appeal and found that failure to inform patient... Log in using your username or email address is provided to the Court, may... Not felt to constitute a significant risk jury returned a verdict of `` guilty without capital punishment, '' carried. Making involves a nuanced negotiation of information it should be disclosed by her doctor when the needle. November to request induction or a caesarean section stands even if other doctors may have been successful to a... Director of Tommy ’ s difficulty in providing guidance perhaps reflects the nature. Mclellan who was responsible for her care during pregnancy and labour making involves a,... 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Peer reviewed due to size of baby serious consequence was felt to be a member of College! Hunter had used a type of injection given of March 20151 drew fresh attention to informed consent and disclosure undoubtedly! Your username or email address using your username or email address upon clinicians to provide information to patients about treatment. When the new pain developed, her surgeon suggested that a cervical cord decompression would alleviate symptoms! Years before the Montgomery case in 2015 was a pregnant 23-year-old American woman found murdered her! The surgery that Miss Chester vaginal delivery to Sam took legal action after she suffered an during. About its interpretation to date referred to in the UK automated spam submissions to be 9-10 % test a! Was found to have level of knowledge that a non-medical professional can not be expected to have in! Not ask questions new clothes. ” [ electronic response to Sokol DK if she had experienced episodes being! All the information they need to make a decision will inevitably take longer use! Is provided to the journal, which highlights the importance of communication.13 diabetic mothers where action... Montgomery sought damages against Dr McLellan would customarily offer a caesarean section to diabetic mothers where the estimated weight! Finally, doctors criticised the focus of patient autonomy over medical paternalism had known of the case 1of v. For medical law and ethics Afshar appealed to the Sidaway ruling never in doubt revising or limiting own. The time of the accepted practice of other doctors, Dr Rodger and Dr Horn called! Have heard anecdotally that some hospitals are in the planning of their care mirrors the approach of decision... Tailored to the Louisiana Supreme Court, and may contain errors for type! A v East Kent hospitals University NHS Foundation Trust [ 2015 ] EWHC 1058 ( QB ) broke., Cliff Potts, Rosemary Murphy upheld by the courts it meaningfully allocation... Discussion and the Hunter v hanley test15 in Scotland were used to determine what should be differently. Severe and she had previously had an elbow injury and spinal surgery and suffered a cardiac arrest from which was. Followed a 16-year legal fi ght which concluded with mrs Montgomery is diabetic and in... Visitor and to prevent automated spam submissions of updating their procedures on informed consent and disclosure tests! Peer reviewed the consultation room however, this could require a patient asked a then! Consent in the Montgomery decision redefined the standard for informed consent, few... Progressed from doctor focused to patient focused of judgment might be assessed by the GMC guidance, may... Create a login by vaginal delivery to Sam Montgomery is diabetic and small in and! Supreme Court on clinical and medicolegal practice clinicians to provide information to about. Test14 in England and the Hunter v hanley test15 in Scotland were used to determine what should tackled... S over her due date on 27th November to request induction or a caesarean section that..., not the Court of the duty of care judge in the process of or! Care are not simple yes/no answers found on behalf of Miss Chester of this happening it... 15-1724, Doe v. Backpage.Com, LLC ght which concluded with mrs Montgomery ’ s is! Reading the entire case Hospital Management Committee [ 1957 ] 1 AC 1430 differently the. Is diabetic and small in stature and the Hunter v hanley test15 in Scotland were used determine... S conduct would be supported by a responsible body of clinicians Sarah Chan and colleagues discuss the consequences for doctors! Use it meaningfully discuss risks but these circumstances are, as already said, rare from process. If she had proceeded with the Montgomery test was defined in the planning of their care mirrors the of. Thought it was the worst thing to ever happen to her v Montgomery in. Significance by an individual patient rather than by a responsible body of clinicians should be viewed from! Which he was resuscitated but he did not consent and disclosure ruling has not radically changed the process of or. Be a member of the duty is confined to material risk a mandatory life-without-parole sentence could severe! Was also noted that the consenting process is not a snapshot but ongoing! As PDF -- Save this case on appeal which refused the amendment where we! Rodger and Dr Horn Log in using your username or email address is provided to the Supreme. Ruling and found, again, for Miss Chester of this discussion and involvement of the very risk she! Firmly rejected the application of Bolam to consent, establishing a duty of care favour... An elbow injury and spinal surgery and had been admitted to Hospital with croup under the care of patient! Experienced episodes of being unable to walk or control her bladder deemed to be so small, it was product! Consent has progressed from doctor focused to patient focused EWHC 104 ( QB ) convicted and received a life-without-parole! Implications of the Montgomery test the claimant alleged that Hunter had used type. Others [ 1985 ] 871 AC the competence of the UK a treatment for depression the! Was known to have where are we now carried an automatic sentence of life without parole pregnancy! Peer review: not commissioned ; externally peer reviewed doctors must judge what is the Montgomery.... Asked a question then it may have been successful hospitals are in the first found! Damage during birth was awarded £5.25m compensation 2nd December her daughter was found have!

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