A landmark decision, made last week by the Court of Appeal, in a case that centred on a claim for compensation following complications arising from major surgery, will have implications for medical professionals in their day-to-day interactions with patients.

In handing down its decision to dismiss the case, the Court reaffirmed the ‘Bolam Test’ as the standard in relation to the diagnosis and treatment of patients, and established a new ‘Modified Montgomery Test’ with regards to the advice given to patients, and the information which should be made available to them.

The Bolam Test adopts the principle that a doctor is not negligent if he acted in the same way that other competent doctors would have been expected to. Whilst the Court appreciated that this principle is still appropriate and applicable to the standard of care for diagnosis and treatment of patients, it recognised that patients today have more access to information, and a greater expectation of participation in the consultation process with their doctor.

This recognition led the Court to adopt the Modified Montgomery Test as a new standard of care for the provision of advice and information to a patient. It obliges physicians to provide sufficient information to enable patients to exercise their autonomy and make informed decisions with regards to their care.

The Modified Montgomery Test has been framed as a 3 stage test that the Courts will apply when considering whether a doctor has been negligent in his advice. Under this test:

1) The patient must show that the information the doctor failed to disclose was information that would be relevant and material to a reasonable patient situated in the particular patient’s position, and information that the physician knew would be important to the particular patient in question. This could include information relating to:

• the patient’s diagnosis
• prognosis with and without medical treatment
• nature of the proposed treatment
• risks associated with proposed treatment
• alternatives to the proposed treatment
• advantages and risks of those alternatives.

2) If the patient successfully shows this, the Court will then determine whether the doctor was in possession of the information.

3) If the doctor was in possession of the information, he/she must then show that in all the circumstances he/she was justified in withholding the information, otherwise he/she would have breached the standard of care.

The groundbreaking nature of the Modified Montgomery Test is that the decision on appropriate disclosure is determined from the patient’s perspective, and not the perspective of what other physicians would have provided, as it had been under the Bolam Test. In reaching their decision, the Court stated that it believes that this approach balances the rights of doctors and patients.

So what does it mean in practice?

It is essential to recognise that when advising a patient and providing them with information, you consider the individual requirements of that particular patient, and what is material to them. What does he or she need to know, taking into account his or her particular circumstances and concerns? What do the questions they are asking suggest is important to them? Are there any pre-existing conditions which give rise to peculiar risks? Does the patient’s job or current circumstances make a risk more material, or give rise to more serious consequences for them?

While this standard applies to the provision of information generally, it goes right to the heart of consent, ensuring that a patient is sufficiently informed of the risks and reasonable treatment options, including non-treatment if that is a reasonable option. Your discussion cannot simply be based on a matter of percentages or probabilities, but rather must be sensitive to the characteristics of the particular patient, with consent focused on what is important and material to them.

This approach involves understanding your patient’s individual needs and circumstances more than ever before, and building this in to your consenting process, so that the patient is appropriately informed. As always, it is crucial that you document your discussions and ensure that you and the patient are comfortable that he or she is equipped as an individual to make the decision about their care.

To help this process, in addition to discussions with your patient, it may also be useful to supply pre-treatment literature or signpost them to online material, for them to read and reflect upon at their leisure. This additional information can be used as a starting point for further consent discussions, focusing on the particular patient in front of you.

The Court has affirmed the importance of respecting patient autonomy in decisions about their care, on the basis that they are provided with the information they should reasonably expect to receive and which they personally need to know. If a doctor decides not to disclose information that may be considered relevant and material to the patient, they would have to be prepared to justify that non-disclosure. It might be necessary to demonstrate, for instance, that disclosure was not possible due to an emergency situation, or that it would have caused harm to the physical or mental wellbeing of the patient to do so.

In addition to the ruling made in this case, the revised SMC Ethical Code and Guidelines, (which were updated in 2016 and came into effect on 1 January 2017), also provide updated guidance on consent – Section C6 (pg 37) - with point 3 referring to material risks:

‘You must ensure that patients are made aware of the purpose of tests, treatments or procedures to be performed on them, as well as the benefits, significant limitations, material risks, (including those that would be important to patients in their particular circumstances), and possible complications as well as alternatives available to them.’

This means that there is not only a legal imperative, but a professional obligation to move to a patient centred approach when providing information and advising of risks and treatment options.  

We also offer a risk management workshop on Mastering Shared Decision Making for those members who wish to explore the challenges that can be faced in the decision-making process, and what techniques can be used to reduce the associated risks.

If you have any questions concerning how this Court of Appeal decision affects you and your practice, please do contact us either by email at [email protected] or call our toll free number on 800 616 7055.