If you have never heard of Nadine Montgomery she is fundamental to the current law on consent. She is not a doctor or a lawyer or a politician she is a patient. This is her story:
Nadine Montgomery was a woman with diabetes who gave birth by vaginal delivery. What is significant about this delivery was that her baby Sam was born with serious disabilities after shoulder dystocia during delivery.
The doctor, Dina McLellan did not tell Nadine Montgomery about the 9-10% risk of shoulder dystocia.
Why not? Dina McLellan said she did not routinely discuss the risk of shoulder dystocia with women for fear that, if told, such women would opt for a caesarean section.
So, why is this important to osteopaths?
In 2015, this case went to the Supreme Court – Montgomery v Lanarkshire’s Health Board.
The court held that McLellan should have informed Montgomery of the risk and discussed with her the option of a caesarean section.
The conclusion is that a patient has the right to make their own decision based on sufficient information.
As a result of this ruling consent law has fundamentally changed.
A little history of consent….
Consent law was shaped by two cases – Bolam and Sidaway.
The Bolam test was used in cases of negligence. In Bolam v’s Friern Barnet Management Committee in 1957 a patient suffered severe injuries as a result of receiving Electro Convulsant Therapy without muscle relaxants. The judge ruled that the doctor had not been negligent as he had acted in accordance with a practice accepted as proper by a responsible body of medical persons skilled in that art.
The Bolam test asks whether a doctor’s conduct would be supported by a reasonable body of medical opinion.
Sidaway v’s Bethlem Royal Hospital Governers 1985 – a patient was left with paralysis after an operation to relieve a trapped nerve. The patient claimed negligence as she had not been informed of the risk of this outcome. The judge rejected the apellants claim as a respectable body of medical opinion agreed that it was not necessary to warn a patient of every risk.
Despite this outcome it was established in English common laws that a doctor has a duty to provide their patients with sufficient information for them to reach a balanced judgement.
So, initially there was a focus on whether the practitioner’s consent procedures were consistent with the behaviour of peers. Later there was an increased requirement to provide sufficient information for patients to make a decision.
The change in consent law…
Consent law has been changed now so it is patient focussed. This is another push away from the historic paternalistic model of the practitioner-patient relationship.
The law now requires practitioners to take ‘reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable, alternative or variant treatments.
Material risk is the risk which a reasonable person in the patient’s position would be likely to attach a significance or a risk that a doctor know – or reasonably should know – would probably be deemed of significance by this particular patient.
It is both fact-sensitive and sensitive to the characteristics of the particular patient. It cannot be achieved by providing a mass of information that the patient may not understand and a signature on a form will also not achieve informed consent.
Patient’s must be informed, they must be given responsibility for making choices. Informed consent must be applied to that patient at this moment in time. You may need to consider their family history, their medical risks, any concerns they raise, any other concerns or characteristics that the patient has. It is no longer for you to decide and filter information it is for the patient to understand and make their own decisions.
So the whole judgement of obtaining informed consent has changed from the practitioner perspective to the patient perspective. It is judged by whether a reasonable person in the patient’s position would expect to receive that information.
Montgomery applies to the whole of healthcare
Although these rulings refer to doctors, they apply to the whole of healthcare. The new Osteopathic Practice Standards have been updated to reflect the change in law since the last issue. There is a clear Montgomery perspective on consent.
You will still find many practitioners exhibiting paternalistic characteristics – they consider that they know what is best for their patients and will determine the treatment methods and direction of treatment. This is not the best way to practice for patient satisfaction or a healthy patient-practitioner relationship. We can all have a paternalistic perspective at times and it is important that reflective practitioners work on continuously improving their patient-practitioner relationships through regular reflective learning.
You will often hear Montgomery referred to in other aspects of the practitioner-patient relationship, not just consent. Patient relationships must be central to all treatment decisions. Practitioners must not be dictators it is for patients to determine the priorities, methods and direction of their treatment based on being informed by practitioners’ knowledge and expertise and their own individual values and preferences. This will be referred to more in future posts.