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New judgment on patient consent

20 March 2015

The law on informed consent has changed following a Supreme Court judgment.

Doctors must now ensure that patients are aware of any “material risks” involved in a proposed treatment, and of reasonable alternatives, following the judgment in the case Montgomery v Lanarkshire Health Board.

This is a marked change to the previous “Bolam test”, which asks whether a doctor’s conduct would be supported by a responsible body of medical opinion. This test will no longer apply to the issue of consent, although it will continue to be used more widely in cases involving other alleged acts of negligence. 

The new test

In a move away from the ‘reasonable doctor’ to the ‘reasonable patient’, the Supreme Court’s ruling outlined the new test: “The test of materiality is whether, in the circumstances of the particular case, 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.”

It is notable that this decision enshrines in law principles that are already in the GMC’s guidance on consent, Consent: Patients and Doctors Making Decisions Together (2008), and which are reflected in MPS’s own advice materials on consent [read bespoke advice for doctors in England, Wales, Scotland and Northern Ireland].

This was confirmed in a statement from GMC chief executive Niall Dickson, who said: “We are pleased that the court has endorsed the approach advocated in our guidance on consent. Good Medical Practice and Consent: Patients and Doctors Making Decisions Together make it clear that doctors should provide person-centred care. They must work in partnership with their patients, listening to their views and giving them the information they want and need to make decisions.”

The case

In 1999, Nadine Montgomery gave birth by vaginal delivery to Sam. The birth was complicated by shoulder dystocia. Medical staff performed the appropriate manoeuvres to release Sam but, during the 12-minute delay, he was deprived of oxygen and subsequently diagnosed with cerebral palsy.

Mrs Montgomery is diabetic and small in stature and the risk of shoulder dystocia was agreed to be 9-10%. Despite expressing concern to her consultant about whether she would be able to deliver her baby vaginally, the doctor failed to warn Mrs Montgomery of the risk of serious injury from shoulder dystocia or the possibility of an elective caesarean section. 

Mrs Montgomery brought a claim against Lanarkshire Health Board, alleging that she should have been advised of the 9-10% risk of shoulder dystocia associated with vaginal delivery notwithstanding the risk of a grave outcome was small (less than 0.1% risk of cerebral palsy). 

It was also alleged that delivery by caesarean section ought to have been offered to Mrs Montgomery, and that this would have prevented the child’s injury.

Lanarkshire Health Board argued that only the risk of a grave adverse outcome triggered the duty to warn of such risks and that, because the risk of such an outcome was so low and that an expression of concern was not the same as a direct question requiring a direct answer, no warning was required.


The Supreme Court held that the question should have been about Mrs Montgomery’s likely reaction if told of the risk of shoulder dystocia. The unequivocal position was that she would have chosen to give birth by caesarean section.

The Bolam test was deemed unsuitable for cases regarding the discussion of risks with patients, as the extent to which a doctor may be inclined to discuss risks with patients is not determined by medical learning or experience.

The court ruled that Mrs Montgomery should have been informed of the risk of shoulder dystocia and given the option of a caesarean section.

Mrs Montgomery was awarded £5.25 million in damages.

What does this mean for you?

Protecting information – protecting you

At MPS we recognise the importance of protecting individuals’ personal data and the responsibility we all have in ensuring the security of the data we hold. In today’s world we are increasingly reliant on exchanging data via email and it is important that we continue to have the appropriate level of security in place to protect this data. 

MPS already uses an industry standard email encryption solution to help minimise the risk of interception and misuse of confidential and sensitive information. As email security standards and technology advance, we have introduced additional email protection measures from April 2015.
Why are we introducing this change?
This change is an important step in ensuring we are doing our utmost to protect the security of the data we hold and exchange via email with our members. It demonstrates our ongoing commitment to providing the highest level of service for our members.
David Wheeler General Counsel at MPS
How will it impact me?
The vast majority of our members will not see any difference as a result of these changes and will continue to be able to send and receive emails securely to and from MPS as they do now. However, for some members, depending on their existing email provider and the content of the email correspondence, they may in future be directed to retrieve and exchange messages with MPS via a secure portal.

If you are likely to be affected by this change, we will be writing to you to provide more information on the changes and how to use the portal. There will also be plenty of information and helpful guides available on our website to ensure that we make the transition to this new way of handling emails from MPS as simple as possible.

We know that ensuring the security of your confidential data, and that of your patients and other third parties, is as important to you as it is to MPS. Introducing this enhanced email security is part of our ongoing commitment to ensuring we continue to put the protection of our members’ interests first.
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1 comment
  • By Michael Ayeko on 04 June 2015 08:08 This judgment means that as an anaesthetist, I have to warn all my patients about the very small risk of unintended awareness during general anaesthesia and subsequent risk of PTSD, and also permanent spinal cord damage from spinal cord needling as a complication of spinal and epidural anaesthesia, when discussing the anaesthetic options they have. This is likely to make patients very anxious about their anaesthetic, but I agree that this information is required for informed patient consent.
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