The UK Supreme Court in Montgomery v Lanarkshire Health Board imposes a duty on healthcare professionals in relation to information disclosure. The obligation is to take reasonable care to ensure that patients are aware, not just of material risks inherent in any recommended treatment, but of any reasonable alternative treatments. While liability for information non-provision was previously decided according to whether the profession would deem disclosure appropriate, the law now judges the sufficiency of information from a patient’s perspective. In doing so, it adopts the approach advocated for Australia in Rogers v Whitaker. However, commentators, in this journal and elsewhere, have expressed concern that the disclosure obligation is unclear. Although Montgomery defines what is ‘material’ for the purpose of identifying notifiable treatment risks, it offers less guidance as to when alternative treatments will be sufficiently ‘reasonable’ to warrant disclosure. Through an analysis of Australian and UK case law and examples, this article considers the ambit of a practitioner’s duty to discuss alternatives. It concludes that although likely subject to further litigation, the identification of reasonable treatment options requiring disclosure will be influenced by the patient’s clinical condition, their prognosis and viable options from a medical perspective, and various non-clinical matters influenced by the test of materiality.
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2.
Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, [35].
3.
NM v Lanarkshire Health Board [2010] CSOH 104, [229]; [2013] CSIH 3, [11].
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Disputed by Montgomery and Montgomery who assert that the risks were ‘suppressed’: Montgomery J and Montgomery E.
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5.
Bolam v Friern Barnet Hospital Management Committee [1957] 2 All ER 118.
6.
Sidaway v Board of Governors of the Bethlem Royal Hospital and Others [1985] AC 871.
7.
Montgomery v Lanarkshire Health Board [2015] AC 1430, [73]. See also Scott E, Aziz O, Rushton Het al. The implications of Montgomery vs. Lanarkshire Health Board for NHS patient information services. Clinical Risk2016;
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8.
Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164 (QB), [67].
9.
Rogers v Whitaker (1992) 175 CLR 479 (Rogers).
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Montgomery v Lanarkshire Health Board [2015] AC 1430, [75]. See also [87].
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17.
Rosenberg v Percival (2001) 205 CLR 434, 476-7 (Kirby J).
18.
Richards v Rahilly [2005] NSWSC 352. See also [228] (Richards).
19.
(1992) 175 CLR 479, 494 (footnote 54), referring to Canterbury v Spence (1972) 464 F 2d 772, 781. See also Rosenberg v Percival (2001) 205 CLR 434, 465 (Kirby J).
20.
Rosenberg v Percival (2001) 205 CLR 434, 458-9 (Gummow J).
21.
Richards v Rahilly [2005] NSWSC 352, [229].
22.
[2008] EWHC 2237, [71]–[79]. See also [82] (Birch).
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Sheppard v Swan [2004] WASCA 215, [44]; Wheeler RA. Consent in surgery: is there a Montgomery effect? Clinical Risk2016;
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24.
AH v Greater Glasgow Health Board (2018) SLT 535, 545–546. See also Hii Chii Kok v Ooi Peng Jin London Lucien [2017] SGCA 38, [142], [146].
25.
[2017] EWHC 3398 (QB) (Bayley).
26.
Meiklejohn v St George’s Healthcare NHS Trust [2014] EWCA Civ 120, [60]–[62]. Decided pre-Montgomery, a patient diagnosed with acquired aplastic anemia (AA) and treated with antilymphocyte globulin causing harm, unsuccessfully argued that they should have been advised of an alternative diagnosis (a form of inherited AA, dyskeratosis congenita (DC)) and treatment. Here, there was nothing in March 2003 to cause the practitioner to suspect DC.
27.
[1999] NSWCA 166, [38]–[39].
28.
Jordan v Lee [2012] WADC 74, [840].
29.
[2012] WADC 74.
30.
[2002] NSWSC 382, [9]. See also [135].
31.
[2019] VCC 241, [4]–[7], [118]–[125], [181]. See also [131]–[162]; [2019] VSCA 205, [110]. Liability was however denied as the surgery’s non-disclosure by the hospital was not proved.
32.
Morocz v Marshman [2015] NSWSC 325, [186]–[192]. Here, failing to discuss non-surgical treatments for sweaty palms was not negligent as the patient ‘was patently aware of the conservative options’ having previously tried some (para 191). See also Jambrovic v Day [2017] NSWSC 1468, [48], [132]–[133]; compare Zaltron v Raptis [2001] SASC 209, [37], [99] (duty to advise that the likelihood of amputation made conservative management an unrealistic option to surgery).
33.
[2018] EWHC 164 (QB). See also Thefaut v Johnston [2017] EWHC 497 (QB), [72] (that the patient’s pain may recover naturally within 12 months, was ‘a very important alternative’).
34.
Bloodworth v The South Coast Regional Health Authority t/a Gold Coast Hospital [2004] NSWSC 234, [143]–[145] (failure to warn of the relative material risks of open versus laparoscopic surgery).
35.
[2017] EWHC 1495 (QB), [24]–[28]. Ultimately the surgeon was not liable. Had all relevant information been disclosed, the patient would still have proceeded via mesh repair: [2019] EWCA Civ 585. See also Mills v Oxford University Hospitals NHS Trust [2019] EWHC 936 (QB) (duty to advise of alternative surgical techniques).
36.
[2017] EWCA Civ 62, [34]–[41].
37.
[2019] EWHC 106 (QB), [111].
38.
See, e.g., Zaltron v Raptis [2001] SASC 209, [56].
39.
Keane v Tollafield [2018] 8 WLUK 306, [35]–[45]. At the time of consent, bunion surgery was the only realistic option. Experts had disavowed the usefulness of orthotics. Paracetamol use and changed footwear had proved unsuccessful.
40.
Tasmin v Barts Health NHS Trust [2015] EWHC 3135 (QB), [97]–[103], [116]–[117] (Tasmin).
41.
Montgomery v Lanarkshire Health Board [2015] AC 1430, [85], [88], [91].
42.
Rogers v Whitaker (1992) 175 CLR 479, 493–494 (Gaudron J). See also Sidaway v Board of Governors of the Bethlem Royal Hospital and Others [1985] AC 871, 889–890 (Lord Scarman).
43.
Britten v Tayside Health Board [2016] SC DUN 75, [23].
44.
[2004] WASCA 215 (Sheppard).
45.
[2016] SC DUN 75.
46.
Tai v Saxon (Supreme Court of Western Australia, Pidgeon, Franklyn and Ipp JJ, 8 February 1996) 9.
47.
For example, ‘where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision’: Montgomery v Lanarkshire Health Board [2015] AC 1430, [88]. See also Sheppard v Swan [2004] WASCA 215, [112]–[113].
48.
HoldenACL. The future of failure to warn in dentistry after Montgomery: reflections from Australia. Br Dent J 2018;
224: 11–14 at 12–13. See also Hii Chii Kok v Ooi Peng Jin London Lucien [2017] SGCA 38, [144]–[145].
49.
AustinLV.Grimstone v Epsom and St Helier University Hospitals NHS Trust : (it’s not) hip to be square. Medical Law Review2018;
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50.
[2015] EWHC 3756 (QB), [1], [8], [12].
51.
Subject to therapeutic privilege: Rogers v Whitaker (1992) 175 CLR 479, 487. See also Zaltron v Raptis [2001] SASC 209, [100]; Montgomery v Lanarkshire Health Board [2015] AC 1430, [58]; Phelan v Melbourne Health [2019] VCC 241, [34].
52.
In Tasmin, had a request for caesarean section been maintained, the practitioner ‘would have respected that and undertaken the procedure, having first obtained informed consent’: [2015] EWHC 3135 (QB), [51]. However, where not medically indicated, there is evidence to suggest that a competent patient’s request for an elective caesarean, and their understanding and acceptance of its comparative risks and benefits, does not oblige an obstetrician to proceed with it. Referral to another practitioner is then recommended: National Institute for Health and Care Excellence (NICE). Caesarean section. Clinical guideline [CG132],
2011: 1–47, [1.2.9], www.nice.org.uk/guidance/cg132 (accessed 15 May 2020); Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG). Caesarean Delivery on Maternal Request,
2017: 1–11, [2], https://ranzcog.edu.au/statements-guidelines (accessed 15 May 2020). See also n 53 and accompanying text. Furthermore, for a practitioner to be liable in negligence for failing to disclose an option of caesarean section, the patient would need to prove, that if so advised,
that alternative would have been both accessible and pursued such that their claimed harm would then not have occurred.
53.
Montgomery v Lanarkshire Health Board [2015] AC 1430, [95], [115]; R (On the application of Burke) v The General Medical Council [2005] EWCA Civ 1003; General Medical Council. Decision making and consent: supporting patient choices about health and care. Draft guidance for consultation,
2018: 1–21, [15], [41]–[42], www.gmc-uk.org/about/get-involved/consultations/review-of-our-consent-guidance (accessed 15 May 2020); General Medical Council. Consent: patients and doctors making decisions together,
2008: 1–62, [5], www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/consent (accessed 15 May 2020).
