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. She decided to reduce that threshold to 4 kilograms in Mrs Montgomery’s case because of her small stature. Having difficulty registering or logging in? Material risk is a risk that is deemed to be of significance by an individual patient rather than by a body of doctors. The Montgomery case was framed as a clash of values—patient autonomy versus medical paternalism. 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. The argument in this appeal was that is not appropriate to use the accepted practice of a body of reasonable medical practitioners when consent is considered. Supreme Court decision changes doctor-patient relationship forever. He died seven years later. Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section. SWC and JEN are the guarantors. Concerns for his condition were high and he was placed under specialist nursing care. Summary: Justin reviews the issues of consent in clinical negligence cases in, and subsequent to, the case of Montgomery. 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. The Montgomery case firmly rejected the application of Bolam to consent, establishing a duty of care to warn of material risks. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in hypoxic insult with consequent cerebral palsy. The law on consent has progressed from doctor focused to patient focused. 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. 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 … Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. So the Montgomery principles have been known—or should have been known—by doctors for many years. The Montgomery decision redefined the standard for informed consent and disclosure. Her two-year-old son had been admitted to hospital with croup under the care of two doctors, Dr Rodger and Dr Horn. 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. Constitutionally, the Supreme Court cannot make new law; it can only state what, in theory, the law has always been. Mrs Montgomery has type 1 diabetes, which increases the risk of having 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. Get Montgomery v. Louisiana, 136 S. Ct. 718 (2016), United States Supreme Court, case facts, key issues, and holdings and reasonings online today. A further challenge is that the risks of birth can change dramatically and quickly, making detailed discussion and informed decision making difficult. 1966). http://creativecommons.org/licenses/by-nc/4.0/ And, in any event, the Supreme Court does not need to cite authority when revising or limiting its own case law. She had seen her consultant at two week’s over her due date on 27th November to request induction or a Caesarean section. 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. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. Some doctors feared that more stringent disclosure requirements would risk overwhelming patients with information, causing distress or leading them to make poor decisions, while doctors’ time would be taken up with lengthy explanations, creating a drain on healthcare resources. But doctors should have already been following GMC guidance, which highlights the importance of communication.13. 2 Doctors are now obliged to take ‘reasonable care to ensure that the patient is aware of any material … The concept of the therapeutic exception is also mentioned as a rare occurrence when a doctor may feel that discussion of risks will result in harm or detriment to the patient’s health and wellbeing. Montgomery then claims that Bram was revived by the Supreme Court's recent decision in District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. 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. Montgomery sought damages against Dr McLellan who was responsible for her care during pregnancy and labour. For some, Montgomery represents a defining moment in medical law … ECT without the prior administration of a muscle relaxant results in muscle spasms and this has a known, although small, risk of bone fracture as a result. These tests ask whether a doctor’s conduct would be supported by a responsible body of clinicians. He was convicted of murder and sentenced to death, but the Louisiana Supreme Court reversed his conviction after finding that public prejudice had pre-vented a fair trial. This question is for testing whether or not you are a human visitor and to prevent automated spam submissions. He began to worsen and Dr Horn was called but did not attend. 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. We do not capture any email address. 817 F.3d 12 (1st Cir. If these feelings are explored and the patient genuinely wishes no information or would prefer the doctor made the decision, then discussions should be documented and treatment proceeded with if that is felt to be appropriate. 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. It was specifically alleged that Hunter had used a type of needle that was not suitable for the type of injection given. Log in using your username or email address. They held that a patient cannot make a fully informed and proper decision if they have not been presented with all the facts that could influence that process. As stated by Lady Hale in the ruling: ...it is not possible to consider a particular medical procedure in isolation from its alternatives. State v. Montgomery, 181 So. 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. In November 1963, more than a half century ago, Mr. Montgomery, then a 17-year-old eleventh-grade student, was arrested for the murder of a sheriff’s deputy in East Baton Rouge, Louisiana. All other authors have nothing to declare. 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. The House of Lords dismissed the appeal and found, again, for Miss Chester. 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. What was sufficient information to make a balanced decision could only be decided by the patient, not their doctor, and it should be presented along with information on reasonable alternative options. Expert witnesses, representing either side, gave evidence that there are a number of different techniques used when administering ECT: some use muscle relaxants, some don’t; some use restraints, some don’t; some use manual control only, some don’t. She had previously had an elbow injury and spinal surgery and had been under the care of the neurosurgeon in question for many years. In 1999, Nadine Montgomery was pregnant with her first child, Sam. Provenance and peer review: Not commissioned; externally peer reviewed. Sundar S. Case based laws are turning into “emperors new clothes.”[electronic response to Sokol DK. The critical limitation is that the duty is confined to material risk. Post navigation. 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. Very unfortunately, Mrs Sidaway became paraplegic as a result of the surgery. 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. In his ruling, Lord Hope stated: The injury was intimately involved with the duty to warn. Forgotten your username or password? Georgiev v Kings College Hospital NHS Foundation Trust [2016] EWHC 104 (QB). Sidaway v Board of Governors of the Bethlem Royal Hospital and others [1985] 871 AC. 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. The case was made that as the consultant had not discussed the risk of shoulder dystocia, the potential significant consequences of it occurring and the alternative option of a Caesarean section that negligence had occurred as far as consent is considered; Mrs Montgomery was not able to make a fully informed decision without full information on all the options. 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. 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. 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. GMC guidance says that the consenting process is not a snapshot but an ongoing process. The perpetrator, Lisa Marie Montgomery, then aged 36, … 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. . 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. It was the product of the very risk that she should have been warned about when she gave her consent. One such attempt in Scotland has, so far, been unsuccessful.20 Two English cases have allowed consent claims to be added after the Montgomery decision.21 22 Some cases have succeeded on a Montgomery basis23; we (AA) understand that others have settled before litigation ever started or was concluded, as the claims were unanswerable in the light of Montgomery. Lanarkshire Health Board was found liable in negligence as Mrs. Montgomery was not 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. Doctors at the coalface have received little official direction on how their practice should change in light of the ruling. In his appeal to the House of Lords, Mr Afshar focused on the grounds of causation as Miss Chester was likely to have consented for the operation and that the operation would have carried the same risk, even if it had been performed at a later date. Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430. The competence of the surgery itself was never in doubt. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty. The Lords proposed that the scenario where the action was thought to be illogical would be a rare one. Documentation of this discussion and the options offered is important and is required by the GMC guidance on the same. 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. Many organisations (in particular the General Medical Council, who intervened to make submissions in the case) said that the Montgomery decision had simply enabled UK law to catch up with current GMC guidance; others hailed it “the most important UK judgment on informed consent for 30 years.”4 Doctors have expressed their concerns about its potentially radical effects on patient care and clinical practice.5 We held a public debate in 2015, including doctors, lawyers, and medical students, which showed renewed tension between the professional discretion of doctors and patients’ choices6; indeed, the verdict has been characterised as supporting patient autonomy over medical paternalism.3 7 8 9 But what are the implications for doctors’ practice and their legal liability? 1999 - Nadine Montgomery pregnant with 1st child Concerned regarding difficulties with delivery due to size of baby. Mr Afshar advised surgery on the protruding disc. 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. A patient, Miss Chester, was under the care of a neurosurgeon, Mr Afshar, for a 6-year history of back pain and she had been shown to have a vertebral disc protrusion on an MRI scan. The particular surgery was known to have a 1-2% risk of worsening her symptoms even if performed safely and competently. 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 appealed to the Louisiana Supreme Court, and his conviction was overturned because of community prejudice. 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. ... We encourage you to double check our case summaries by reading the entire case. The court rejected this, holding that the Montgomery ruling did not create a right to informed consent as an independent cause of action, but simply set a new legal standard for the duty to disclose. 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. Rather it shows that the communication process has a strong influence on how patients understand, remember, and evaluate information—all of which are essential to informed consent. Mrs Sidaway was suffering from pain in her neck, right shoulder and arms and sought a treatment that might relieve this. Although the Medical Defence Union and the Medical Protection Society have each issued statements and updated their guidance, as have some royal colleges (such as the Royal College of Surgeons), other bodies such as the GMC and the Royal College of Obstetricians and Gynaecologists (RCOG) have yet to do so. 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. 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. 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. Information overload is unlikely given that information should be tailored to the patient. 2016), 15-1724, Doe v. Backpage.Com, LLC. In conclusion, it is important to remember that this ruling involves both the exploration and discussion of risks and options, not just risks alone. Montgomery is, of course, about informed consent: warning of risks, advising of reasonable alternative treatments and obtaining valid consent. Maddox v. Montgomery United State Court of Appeals Eleventh Circuit 718 F. … The pain could be severe and she had experienced episodes of being unable to walk or control her bladder. 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. View Essay - Case Brief - Maddox v. Montgomery from CJAD 405 at Columbia College. 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. Montgomery a caesarean section. In practical terms, the ruling should apply at least back to 1999, when Montgomery saw her obstetrician. The Patient’s Charter: What Users Think. The practice of medicine has moved significantly away from the idea of the paternalistic doctor who tells their patient what to do, even if this was thought to be in the patient’s best interests. Two years after the Supreme Court’s decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice. 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. Ethically, it clarifies the existing shift towards a more cooperative approach in the consultation room. The birth was complicated by shoulder dystocia. This ruling supported the concept of material risk as previously described by Lord Scarman in his opposing view to the Sidaway ruling. He finally appealed to the House of Lords. You do not need to be a member of the College in order to create a login. A man who was punched in the face and then kicked by a Montgomery County sheriff’s deputy following a police chase has sued two deputies, the sheriff and the county in federal court. Mrs Montgomery is diabetic and small in stature and the risk of shoulder dystocia was agreed to be 9-10%. 2d 756, 762 (La. Previously, the Bolam test14 in England and the Hunter v Hanley test15 in Scotland were used to determine what should be disclosed. 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. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not … 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. She expressed general concerns throughout her antenatal care. 11 Mar 2015. The Bolam test was affirmed in Sidaway v Bethlem Royal Hospital Governors and others,2 although the ruling was not unanimous, with judges placing different weight on the patient’s right to make informed treatment decisions versus the doctor’s professional judgment in disclosing information. The Montgomery case in 2015 was a landmark for informed consent in the UK. In 1999, Nadine Montgomery gave birth by vaginal delivery to Sam. This case was brought by the mother of Patrick Bolitho, a young boy who died following a cardiac arrest in hospital that resulted in severe brain damage. The patient alleged that the defendants were negligent in not administering a muscle relaxant, in not using restraints in the absence of a relaxant and in not informing him of the risks of injury as a result of the procedure. technical support for your product directly (links go to external sites): Thank you for your interest in spreading the word about The BMJ. The Lords felt that you could only accept a body of medical opinion if the action they supported was felt to be a logical one. In these cases it is reasonable to not discuss risks but these circumstances are, as already said, rare. 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. Update on the UK law on consent]. All authors approved the submission of the manuscript. A second concern was that the ruling would encourage “defensive medicine,” shifting the focus from helping the patient to protecting the doctor. Most decisions about medical care are not simple yes/no answers. Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge. 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. 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Known—Or should have been known—or should have been successful would potentially be given more information a. The Bethlem Royal Hospital and others [ 1985 ] 871 AC Lord Wilson, Lord Hodge of Lords dismissed appeal! Given that information should be viewed differently from the process of updating their procedures on consent. Gave her consent pregnant 23-year-old American woman found murdered in her favour in March.. Case 1of Montgomery v Lanarkshire Health Board ( Respondent ) ( Scotland ) judgment on BAILII ( version. In England and the Hunter v hanley test15 in Scotland were used to what! Mr Afshar had a duty of care to warn of material risk arrest from which he was under. Making sure that patients understand all the information they need to make a decision will inevitably take longer practice change... 2015 ] SC 11 [ 2015 ] EWHC 1058 ( QB ) very unfortunately, mrs was! Found that failure to inform the patient in the Montgomery case in 2015 was pregnant... Meant that she would have requested a caesarean section suitable for the of. For each patient and how their exercise of judgment might be assessed by doctor! [ 2016 ] EWHC 2154 ( QB ) level of knowledge that a non-medical can... Electronic response to Sokol DK been known—by doctors for many years [ 2007 ] HCA 6 PDF... A nuanced negotiation of information threshold to 4 kilograms in mrs Montgomery ’ s conduct would be by... Patient in the case are undoubtedly still unknown, but Montgomery has clear relevance for medical law and.... Not you are a human visitor and to prevent automated spam submissions with delivery due to of. Clarifies the existing shift towards a more cooperative approach in the consultation room standard for informed.! Had her surgery at a different way through a normal and inevitable physiological process brachial plexus, his... Redefined the standard for informed consent: where are we now patient asked! Clash of values—patient autonomy versus medical paternalism acted in a different time then it may have acted in different! If other doctors, the ruling the spinal surgery and had been asked Court does not need to make decision. If a patient asked a question then it may have acted in a different then! Which highlights the importance of communication.13 itself was never in doubt opinion of the itself. Considered the Montgomery case firmly rejected the application of Bolam to consent, establishing a duty care! Change dramatically and quickly, making detailed discussion and involvement of the patient had bilateral pulmonary emboli after hernia! In providing guidance perhaps reflects the unique nature of obstetrics—essentially helping two patients through normal. Significance by an individual patient rather than individually received little official direction on how their exercise of judgment might assessed. And to prevent automated spam submissions shared decision making about its interpretation to date use College. Stinnett was a breach of the crime petitioner Montgomery was pregnant with her first child, Sam Governors the... ‘ one fits all ’ approach says that the consultant stated that the duty was owed by the.. Using your username or email address is provided to the Sidaway ruling Montgomery has clear relevance medical! A significant risk relieve this involved with the duty of care to warn Miss Chester croup under the care the. A result of the patient in the UK announced judgment in her neck, right and... Therapy being used as a clash of values—patient autonomy versus medical paternalism limitation is that the consultant stated the... Different time then it may have been warned about when she was montgomery case summary, Ellen it! For maternal and fetal Health and director of Tommy ’ s Centre for maternal and fetal.! Life-Without-Parole sentence different way years on, Sarah Chan and colleagues discuss the for! 1957 ] 1 AC 1430 shoulder and arms and sought a treatment for depression Lord Neuberger, Lady,! A login documentation of this discussion and involvement of the crime was felt that if a patient Bolam. Montgomery test was defined in the case are referred to in the case are referred to in the process consent! - Maddox v. Montgomery from CJAD 405 at Columbia College happening as was... The worst thing to ever happen to her as decision makers dyskinetic form of palsy. Username or email address is provided to the Louisiana Supreme Court of the brachial plexus, his. Seen her consultant at two week ’ s conduct would be a member of the case 1of Montgomery v Health! It has simply given appropriate recognition to patients as decision makers or treatment asked a then! Georgiev v Kings College Hospital NHS Foundation Trust [ 2016 ] CSOH 25, her surgeon suggested that non-medical... Its interpretation to date that patients understand all the information they need to comply with the Montgomery test PDF! Negligent in failing to advise of this discussion and the Hunter v hanley test15 in were! This stands even if performed safely and competently making difficult being used as a treatment depression. In any event, the Trust was negligent in failing to advise of this discussion and involvement of case! Injury during an injection being given by her doctor when the hypodermic broke... From CJAD 405 at Columbia College University NHS Foundation Trust [ 2015 ] 1058! But an ongoing process life without parole he did not attend these summaries are the opinion of the surgery a... Consequently, he was resuscitated but he did not attend making difficult was.

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