The patient had their ECT without the use of a muscle relaxant or physical restraints. Neutral citation number  UKSC 11. Planning for labour emergencies is essential, so that the doctor and patient can discuss the patient’s wishes if an emergency should arise. 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. 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. Case ID. Many doctors have questioned the implications that the recent Supreme Court judgement of Montgomery – v Lanarkshire Health Board1 will have for the way they obtain consent from patients. 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. A second concern was that the ruling would encourage “defensive medicine,” shifting the focus from helping the patient to protecting the doctor. The perpetrator, Lisa Marie Montgomery, then aged 36, … These tests ask whether a doctor’s conduct would be supported by a responsible body of clinicians. In 1999, Nadine Montgomery was pregnant with her first child, Sam. In order to discover what may concern a patient, it is imperative that a doctor endeavours to find out what matters to each patient; a concert pianist may have different concerns regarding a hand operation when compared with someone else whose livelihood does not rely on dexterity. Involving a patient in their care and adopting a collaborative approach, as well as complying with the law and GMC guidance, can also result in a more positive, satisfying experience for patients and clinicians alike. He appealed to the Louisiana Supreme Court, and his conviction was overturned because of community prejudice. 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. Her claim was that the accident, and her injury, were the result of Hunter not exercising the usual standard of care and competence that was his duty while performing the injection. Contributors and sources: The authors were organisers (ET, WW, JEN) and participants (SWC, AS, ESC) of an event in the Edinburgh Medical Debates series on the ethical and legal impact of the Montgomery case.6 ET is a medical student at the University of Edinburgh and was primarily responsible for research and initial drafting of the manuscript; SWC is a researcher in bioethics and was responsible for subsequent drafting, critical revisions, ethical analysis, and part of the legal research; ESC, WW, and JEN are clinicians and were responsible for conceiving the idea for the manuscript, critical revisions, and obstetric medicolegal advice; AS is a barrister and QC in both Scotland and England, specialising in medical negligence, and was responsible for legal advice, analysis, and critical revisions. 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 birth was complicated by shoulder dystocia. 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. Since the Montgomery ruling, several attempts have been made to introduce a consent based claim to cases that were under way before the decision. In reality, medical decision making involves a nuanced negotiation of information. Very unfortunately, Mrs Sidaway became paraplegic as a result of the surgery. Two years after the Supreme Court’s decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice. Summary of Montgomery v Lanarkshire Health Board This Supreme Court judgment is required reading for all medical professionals, because the Supreme Court has made clear that the doctrine of informed consent is now part of English (and Scottish) law. Summary of implications of Montgomery What is the Montgomery Test? The defending Health Authority put forward the argument that even if Dr Horn had attended to Patrick, she would not have intubated him and this course of action would have been in keeping with a body of medical practice. Supreme Court decision changes doctor-patient relationship forever. Judgment (PDF) Press summary (PDF) Judgment on BAILII (HTML version) Mrs Pearce had not been informed of the 0.1-02% risk of this happening as it was not felt to constitute a significant risk. maddox v montgomery case brief. This case was heard at the UK Supreme Court in July 2014 before seven Justices following failed appeals in the Court of Session and the Inner House. Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge. He began to worsen and Dr Horn was called but did not attend. Mrs A v East Kent Hospitals University NHS Foundation Trust  EWHC 1038 (QB). Finally, doctors criticised the focus of patient autonomy over medical paternalism. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach a significance to the risk. 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. 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. Mrs Montgomery was around five feet tall, and was also diabetic, which often results in a larger foetus. technical support for your product directly (links go to external sites): Thank you for your interest in spreading the word about The BMJ. 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. 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. 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. A further judgment was issued in this case on appeal which refused the amendment. Bolam v Friern Hospital Management Committee  1 WLR 582. The claimant alleged that the trust was negligent in failing to advise of this possibility. This case was brought by Mr and Mrs Pearce with regards to the obstetric advice she was given during her fifth pregnancy which ended with the stillbirth of her daughter, Jacqueline, in December 1991. 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. The Montgomery case firmly rejected the application of Bolam to consent, establishing a duty of care to warn of material risks. He also suffered an avulsion of the brachial plexus, rendering his arm useless. A further challenge is that the risks of birth can change dramatically and quickly, making detailed discussion and informed decision making difficult. The Supreme Court of the UK announced judgment in her favour in March 2015. Concerns for his condition were high and he was placed under specialist nursing care. Sidaway v Board of Governors of the Bethlem Royal Hospital and others  871 AC. View Essay - Case Brief - Maddox v. Montgomery from CJAD 405 at Columbia College. The case was found for the defence and the ruling introduced a legal test that a claimant would need to satisfy in order for medical negligence to be proved. Doctors may have been treating patients as they understood the law to be, as in the Sidaway case, but the Supreme Court has told us that this was wrong3 and that anyone who practised according to Sidaway was also wrong. Mrs Sidaway was suffering from pain in her neck, right shoulder and arms and sought a treatment that might relieve this. 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. Thus, although the test is focused on patients, doctors are not liable for every omission of disclosure to which a patient later objects.”25. But allocation of health resources should be tackled systematically rather than individually. 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. These summaries are the opinion of the author/s, not the court, and may contain errors. Patrick deteriorated and suffered a cardiac arrest from which he was resuscitated but he had sustained significant brain damage. So the Montgomery principles have been known—or should have been known—by doctors for many years. 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. Despite expressing concern to her consultant about whether she would be able to deliver her baby vagi… 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. Consequently, he was born with a dyskinetic form of cerebral palsy. 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. Miss Chester had the spinal surgery and suffered a worsening in her symptoms. The UK Supreme Court judgement in ‘ Montgomery v Lanarkshire Health Board ’ 1 has become the landmark case in consolidating the law on standard of care of doctors with regard to duty on disclosure of information to patients on the risks of proposed treatment and possible alternatives. 2783, 171 L.Ed.2d 637 (2008). On 2nd December her daughter was found to have died in utero. 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 doctor might think that disclosure of certain information could lead the patient to a decision that is not in their best interests, as was true for the Montgomery case. His opinions in this case are referred to in the Montgomery ruling. But this is a false dichotomy—the idea of a fully autonomous patient making choices completely independent of the doctor’s input does not reflect the complex reality of medical decision making, nor does the caricature of a paternalistic doctor riding roughshod over patients’ objections. The advice from the consultant, following an examination and discussion of the risks of induction and Caesarean, was that Mrs Pearce should await the natural onset of labour. Montgomery and informed consent: where are we now? She expressed general concerns throughout her antenatal care. These “emergencies” might be exempt from the Montgomery ruling, depending on their nature and timing, but complications of labour (such as sudden and profound fetal distress or major maternal haemorrhage) are not, even though, as was noted in the judgment, choices about management of labour cannot generally be deferred. ... We encourage you to double check our case summaries by reading the entire case. This ruling took the view that practice in consent was to be regarded in the same was as diagnosis or treatment when considering if negligence had occurred and the test that was created was doctor, rather than patient, focussed. The Montgomery case in 2015 was a landmark for informed consent in the UK. 16. In making this ruling, the Bolam test was applied which meant that as the usual practice of a body of reasonable doctors in the field of neurosurgery was to not have mentioned this less than one per cent risk. 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. New users must create a login. This ruling supported the concept of material risk as previously described by Lord Scarman in his opposing view to the Sidaway ruling. 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. She expressed general concerns throughout her antenatal care. State v. Montgomery, 181 So. And, in any event, the Supreme Court does not need to cite authority when revising or limiting its own case law. The case changed the Bolam testto a greater test in m… 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. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in … By referring to the importance of the accepted practice of other doctors, the Trust used the Bolam test. The involvement of seven justices in this final appeal is of particular importance as this is the number of justices required to change or overrule a previous House of Lords ruling; in this case, the ruling in Sidaway. Montgomery was retried. Lords Bridge and Templeman applied the Bolam test with the addition that if there were risks that were so obviously frequent or serious, a doctor would be negligent not to mention them, no matter what the accepted practice was amongst the medical profession. Mr Afshar advised surgery on the protruding disc. The Lords proposed that the scenario where the action was thought to be illogical would be a rare one. University of Edinburgh. Justices. 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. Having difficulty registering or logging in? 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. Directed by Boris Sagal. In these cases it is reasonable to not discuss risks but these circumstances are, as already said, rare. She has type 1 diabetes and was concerned during her pregnancy that the size of her baby might lead to difficulties with a vaginal delivery. Information overload is unlikely given that information should be tailored to the patient. The Montgomery decision redefined the standard for informed consent and disclosure. But doctors must judge what is appropriate for each patient and how their exercise of judgment might be assessed by the courts. See: Please note: your email address is provided to the journal, which may use this information for marketing purposes. Summary: Justin reviews the issues of consent in clinical negligence cases in, and subsequent to, the case of Montgomery. He was convicted and received a mandatory life-without-parole sentence. The House of Lords dismissed the appeal and found, again, for Miss Chester. Bobbie Jo Stinnett was a pregnant 23-year-old American woman found murdered in her home in Skidmore, Missouri. 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 Lord Justices found that, in this case, her surgeon had not been negligent in not informing her of the risk of paraplegia. However, this could require a patient to have a level of knowledge that a non-medical professional cannot be expected to have. All seven of the Justices supported the appeal. Constitutionally, the Supreme Court cannot make new law; it can only state what, in theory, the law has always been. Although upset, Mrs Pearce accepted this advice. Mrs Montgomery is diabetic and small in stature and the risk of shoulder dystocia was agreed to be 9-10%. The Case. 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. 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. 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. 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. Montgomery v Lanarkshire Health Board  SC 11  1 AC 1430. The Patient’s Charter: What Users Think. It should be viewed differently from the process of diagnosis or treatment. The pain could be severe and she had experienced episodes of being unable to walk or control her bladder. Mr Afshar had a duty of care to warn Miss Chester of this risk but he did not. You do not need to be a member of the College in order to create a login. There can be no ‘one fits all’ approach. 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. 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 duty was owed by the doctor who performed the surgery that Miss Chester consented to. 2 Doctors are now obliged to take ‘reasonable care to ensure that the patient is aware of any material … But the ethical and legal position is clear: doctors must not withhold information simply because they disagree with the decision the patient is likely to make if given that information. Written and curated by real attorneys at Quimbee. Lanarkshire Health Board was found liable in negligence as Mrs. Montgomery was not Forgotten your username or password? 2016), 15-1724, Doe v. Backpage.Com, LLC. With Elizabeth Montgomery, William Daniels, Cliff Potts, Rosemary Murphy. It was argued by his mother that there had been negligence in his care as, had Dr Horn come to review her son and had he been intubated, then his brain damage and death could have been prevented. When the new pain developed, her surgeon suggested that a cervical cord decompression would alleviate her symptoms.