Even though Mrs. Montgomery expressed concern about the size of her baby the doctor did not warn her of the risk of shoulder dystocia. The Montgomery case in 2015 was a landmark for informed consent in the UK. That panel sent a message to all NGO’s not to have a Law Lord as a patron of your charity as that would compromise your position in important advocacy and litigation matters! The UK Supreme Court judgement in ‘Montgomery v Lanarkshire Health Board’1has become the land- mark case in consolidating the law on standard of care of doctors with regard to duty on disclosure of information to patients on the risks of proposed treatment and possible alternatives.2Doctors are now obliged to take ‘reasonable care to ensure that the patient is aware of … They concede that a patient may not wish or may choose not to be informed of risks. This case had gone through the entire UK law system, showing persistence and confidence of the litigant and her legal team, and ended up at the doorstep of the UKSC after having exhausted all forums to seek justice. There was no obligation to provide patients with unsolicited information about risks if the mention of risks could have a detrimental effect the patient's mind and if it deterred the patient from undergoing the treatment that the doctor believed was in her best interest. When a panel of seven Law Lords sits on a UK Supreme Court (UKSC) appeal hearing, you can bet something is afoot. The first concerned her ante-natal care. Informed Consent : Montgomery v Lanarkshire Health Board. For the second situation, a doctor was not liable in negligence so long as what the doctor said or did not say, including as to risk, was in line with a respectable body of medical opinion. The baby was later diagnosed with a retinal condition, which severely limited his sight. This was in consequence of the famously opaque House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, having applied the Bolam test to questions of risk disclosure and information provision. Rptr. Why increasing patient engagement improves health systems: IAPO at Geneva Health Forum. As a result of Montgomery, the Bolam test, or medical opinion, no longer applies to information provision and disclosure, including as to risk – the second situation. In so doing the court has effectively conscribed the ambit of the Bolam test, which has traditionally made it difficult for a plaintiff alleging negligence, in the context of medical services, to successfully bring a claim and, in cases involving consent, replaced medical opinion with the informed decision of the particular patient. Ratio Decidendi (The Reasoning) Medical care is broadly divided into three aspects, namely, (i) diagnosis, (ii) advice, and (iii) treatment. The hospital was aware of this throughout her pregnancy. P.N., 31(3), 190-194 43 Montgomery (n3) 58 44 Montgomery (n3) 6 45 E Reid (2015) Montgomery v Lanarkshire Health Board and the rights of the reasonable patient, Edin. Bolam vs Friern Hospital Management Committee [1957] 2 All.E.R.118; Montgomery (Appellant) vs Lanarkshire Health Board (Respondent) (2015), UKSC 11. Law regulates many areas of medicine, and doctors need to understand the legal and ethical framework within which they work. “[r]esponsibility for determining the nature and extent of a person’s rights rest with the courts, not with the medical professions”. Secondly, the judgment in Montgomery emphasises dialogue with the patient, and the fact information conveyed must be comprehensible. In 1999, while delivering her baby vaginally, shoulder dystocia occurred. The hospital was aware of this throughout her pregnancy. 2. self-defence - defence to assault - reasonable response - proportional - it is a complete defence to an action of assault if … 27 Friday Mar 2015. Montgomery ruling Informed consent is a fundamental principle of health care: anyone receiving medical treatment must agree to undergo that treatment. However, the Judges go on to say the assessment as to whether a risk is material cannot be confined to percentages. Indeed it may be that if a risk is known extra care should be taken to avoid that risk. In so doing the court has effectively conscribed the ambit of the Bolam test, which has traditionally made it difficult for a plaintiff alleging … In bringing her claim Mrs. Montgomery lost at both first instance and before the (Scottish) Court of Appeal. 97, 354 P.2d 625]. Emily Dorotheou, Olswang LLP Case Comments ≈ 7 COMMENTS. They say whether the risk of an injury or an alternative treatment ought to be discussed with the patient is not a matter of purely professional medical judgment. “…Montgomery is clearly a decision which demonstrates a new development in the law as it relates to the law on informed consent and strictly the ratio decidendi of the decision (the rationale - that part of an authority which is regarded as a binding precedent) is confined to cases involving the adequacy or otherwise of information given to a patient upon which they are to decide whether or not to undergo a … Case Comment: Montgomery v Lanarkshire Health Board [2015] UKSC 11. The UKSC, however, allowed the litigant's appeal and ruled that the Bolam Test had no place in the consideration of such cases concerning patient advice and consent in modern times. The Royal College of Surgeons Guidelines: Consent expands on this. She had an obstructed natural birth in 1999 that resulted in life-changing injuries to her baby and her. There is now a strong ethical perspective permeating medical law. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications … Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a landmark decision, in which the UK Supreme Court has found in favour of informed consent on the part of a patient who is considering, or being advised, to undergo medical treatment. Lanarkshire Health Board, who was responsible for Mrs Montgomery’s care during her pregnancy and labour. Women suffering from diabetes are likely to have babies that are larger than normal, which brings with it an increased risk of approximately 10 percent of shoulder dystocia during delivery. It is recorded in the judgment that it took some 12 minutes between the baby’s head appearing and the effecting of delivery. 11 Wednesday Mar 2015 [2] However, it has caused some consternation among healthcare Montgomery v Lanarkshire Health Board [2015] ... Mrs Montgomery was a diabetic woman, and therefore likely to have a large baby. She was also of the view that caesarean sections were not in the maternal interest. The heart of the issue in this case was about the massive societal change that had taken place with the advent of e-health and patient rights movements that had shaped modern practice and attitudes of physicians that their consultations should be patient-centric and give the patient ALL the timely, accurate and relevant information needed for her to make an ‘informed choice’ and to give her true ‘informed consent’, or even ‘informed dissent’  if she does not elect a procedure that evidence shows is in her ‘best interest’. The full judgment, the point of law decided and the rationale for the decision (ratio decidendi) of this important  case concerning patient information, advice and consent have just filtered through into clinical practice now in commonwealth law jurisdictions. Normally, a panel of three or five sits on a run of the mill cases. As a result, the baby was deprived of oxygen. Consequently, he was born with a dyskinetic form of cerebral palsy. International Alliance of Patients' Organizations, Consensus Framework for Ethical Collaboration, Royal College of Surgeons Guidelines: Consent, Rogers v Whittaker [1992] HCA 58, (1992) 175 CLR 479, Canterbury v. Spence ((18) (1972) 464 F 2d 772), Reibl v. Hughes ((19) (1980) 114 DLR (3d) 1). The UK Parliaments considers ethical principles when legislating on issues such as organ donation and abortion, and judges frequently consider ethical dilemmas in medicine. 46. Montgomery v. Lanarkshire Health Board [2015] UKSC 11, [58]–[59]. Shoulder dystocia, whereby the width of the baby’s shoulders are such that they cannot pass down the birth canal and so the baby cannot be born vaginally unless the baby’s shoulders are somehow freed (or the baby returned to the womb and an emergency caesarean section performed), is an obstetric emergency for the mother, with serious potential adverse consequences for the baby. We reviewed all court decisions since Montgomery which deal with the case, to establish how this judgment is being interpreted by the courts and the implications of this for risk disclosure in practice. Facts. Op. 44. Analysis of the Application of the Standby Letter of Credit for Chinese Issuers’ Offshore U.S. Dollar Bond Issuance, The Great Potential for Hong Kong to Widely Apply Mediation in Resolving Wealth Management Disputes. There is in effect only one judgment (Lords Kerr and Reed) in which, while expressly disapproving of and overruling Sidaway, the various judgments therein are analysed at some length. If the Montgomery judgment is followed in Hong Kong then it is likely the plea that a known risk, which was warned of and consented to by the patient, will increase where the risk manifests. The ratio decidendi of the case is inconsistent with and cannot be reconciled with the rules laid down in the later cases of Sherbert v. Verner, supra, People v. Woody, supra, and Syrek v. California Unemployment Insurance Appeals Board (1960) 54 Cal. Ratio decidendi-Wikipedia. 'Montgomery consent': decision of the UK Supreme Court. In perhaps the core passage, the Judges hold: “an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. There is a 9-10% chance of shoulder dystocia (shoulders being too wide to pass through the pelvis). Indian legal system. The Law Society of Hong Kong | Sweet & Maxwell | Westlaw Asia | Contact Us. Get free access to the complete judgment in Mrs M Hamilton v Lanarkshire Health Board (Scotland : Equal Pay Act) on CaseMine. Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871, 900 (Lord Bridge). There is now a strong ethical perspective permeating medical law. Sidaway vs Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and others, (1985) AC 871 (House of Lords 1985). A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the … Physicians in practice, however, were working to the antiquated standards set by the principle of ‘legal consent’ and could withhold information if they believed it was not material or in the patient’s ‘best Interest’. UK Parliament considers ethical principles when making law on issues such as organ donation and abortion, and in the courts judges frequently consider ethical dilemmas in medicine. The only real modification arose as a result of Bolitho v City and Hackney Health Authority [1998] AC 232, a case which propounded that the body of the medical opinion must be “reasonable, responsible or respectable” and have “a logical and defensible basis”. Specific reference is made to a legal approach “which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives and living with the consequences of their choices”. New Judgment: Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11. Medicine is a changing field, and the way it is practised is in many ways The key element of a case is called the ratio decidendi (reason for the decision). cit. Op. He also suffered an avulsion of the brachial plexus, rendering his arm useless. The obstetrician withheld information on the risks in the mother’s best interests as the mother would have made an irrational choice based on the statistics! Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. She was backed in fact and law by the whole of the lower court system that she had legal consent and had satisfied Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital when she gave her advice. The full judgment, the point of law decided and the rationale for the decision (ratio decidendi) of this important case concerning patient information, advice and consent have just filtered … Srikrishna BN. Summary: A bench of seven Supreme Court Justices held that whether a particular treatment option ought to have been discussed with a claimant patient was not a … Advisory Board. Insiders will tell you that a large panel indicates that there is about to be a profound change of law that will not only affect the UK, but also influence many courts in ‘common law’ jurisdictions like Australia, Canada, India, Kenya and even the USA. ... Montgomery v Lanarkshire Health Board (Respondent) (Scotland). The obstetrician, in her evidence, had said that the mother would have, if she had been given all the relevant risk profile and statistics about diabetic mothers and shoulder dystocia, opted out of natural birth and gone for an unnecessary Caesarean section. Contrary to the expectations of those making the plea, it will not negate a claim being made if the standard of performance of the operation is negligent, as judged (at the moment) by Bolam. 47. Two years on, Sarah Chan and colleagues discuss the consequences for practising doctors The Montgomery v Lanarkshire case of March 20151 drew fresh attention to informed consent. There is a 9-10% chance of shoulder dystocia (shoulders being too wide to pass through the pelvis). Montgomery v Lanarkshire Health Board Supreme Court 11 March 2015 [2015] UKSC 11. Advisory Board. Martin has not been cited in any subsequent case. Heather Beckett, John Radford Practising Midwife 2016, 19 … In deciding whether a patient is so disinclined may involve the doctor making a decision but Montgomery expressly makes clear such a judgment is not “dependent on medical expertise”. Expert evidence had been given for the defendant that essentially supported what Mrs. Montgomery had and had not been told, and was thus Bolam compliant. The ruling in Montgomery v Lanarkshire Health Board is relatively young; there have been insufficient subsequent cases to truly allow a deep … She also delivered the baby. In consequence, he suffered cerebral palsy, with all four of his limbs being affected. Montgomery v Lanarkshire Health Board Supreme Court 11 March 2015 [2015] UKSC 11. Aspects of a case that are not vital to the decision are called obiter dicta (statements made in passing) and they usually have little significance in later cases, although they may have some persuasive force. Fighting resistant superbugs: can we as patients play a bigger role. In the first situation, if a respectable body of medical opinion exists that supports the particular standard of performance or procedure used, a plaintiff bringing a claim will normally not be able to succeed, notwithstanding another body, perhaps of a far larger number of medical practitioners, that is critical of and does not support what was (or was not) undertaken. This in itself comprises two elements. Contents: (i) Introduction (ii) Background to the decision in Montgomery (iii) What Montgomery decided (iv) The Claimant’s perspective (v) The Defendant’s perspective. The judges emphasise the assessment is fact sensitive and also sensitive to the characteristics of the patient. They refer to treatment offered as being not only dependent on clinical judgment but bureaucratic decisions and resource management, amongst other things. Further V v W 02-Dec-20 FC FDR Appointment to Remain Confidential XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of … 45. Liability then was to be determined by what a responsible body of medical opinion would or would not have advised or warned of (ie, Bolam). 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