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After Montgomery

By 10 July, 2018 August 3rd, 2018 Members

Thanks to Shaun Sellars for dropping these cases in my lap. Here are 4 post Montgomery cases mentioning material risk

A v East Kent Hospitals University NHS Foundation Trust (2015) – Claim dismissed, the Judge finding that the material risk claimed by the claimant was NOT a risk that a reasonable patient in the claimants position would have attached significance – Dingemans J said that a risk of 1:1,000 could be described as “theoretical, negligible or background”
http://www.bailii.org/ew/cases/EWHC/QB/2015/1038.html

Tasmin v Barts Health NHS Trust (2015) – found for the defendant. Dismissing the claim, the judge said the risk of serious injury was negligible, of the order of 1:1,000. He held that this was not a material risk, citing A v East Kent Hospitals NHS Foundation Trust [2015] EWHC where Dingemans J described a risk of 1:1,000 as ‘theoretical, negligible or background’. However he preferred to formulate the risk as being ‘too low to be material’. The claim therefore failed.

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David Spencer v Hillingdon Hospital NHS Trust’ (2015). Found for the Claimant. -“In the light of the Montgomery decision already discussed above, I would express the test that I should apply to be the Bolam test with the added gloss that I should pay regard to what the ordinary sensible patient would expect to have been told. Put in the form of a question, the test I consider to be, would the ordinary sensible patient be justifiably aggrieved not to have been given the information at the heart of this case when fully appraised of the significance of it?”

The Judge eventually determining – “I am persuaded that the staff of the hospital collectively failed Mr Spencer by not advising him at any time whilst he was in their care of the life-threatening significance of symptoms of the kind he suffered and the consequent need for him urgently to seek medical care if he suffered such symptoms.”

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Tracy Hassell v Hillingdon Hospitals NHS Foundation Trust (2018)
Found for the claimant. Although the Judge found no fault in the surgical skill of the surgeon – “I find that Mrs Hassell did not give informed consent to the operation and that if she had been given information about material risks and conservative treatment Mrs Hassell would not have agreed to the operation on 3 October 2011. In these circumstances, I give judgment for Mrs Hassell for the agreed sum of £4.4 million.”
http://www.bailii.org/ew/cases/EWHC/QB/2018/164.html

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Lessons learnt from these cases:
The following article is a very good summary of the lessons from Montgomery – https://www.enablelaw.com/lack-informed-consent-spinal-surgery-tracy-hassell-v-hillingdon-hospitals-nhs-foundation-trust/

To summarise the article
1) The Montgomery duty requires patients to be given choice. It is not enough to advise of the risks and benefits of a recommended treatment. Patients must be told of the risks of ‘the recommended treatment, and of any reasonable alternative or variant treatments’
2) A consent form signed on the day of surgery doesn’t indicate informed consent
3) Consent forms are only part of a process of advising and providing consent
4) Whether a risk is material or advice is adequate is not a matter to be judged by the standards of the medical profession. It is for the court
5) Montgomery requires a doctor 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. 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
6) There is still the notion post-Montgomery that not all risks are material. So we aren’t at the point of having to warn of death for every LA injection
7) A vs East Kent and Tasmin vs Barts can be seen as a possible mellowing of the Montgomery judgement.

 

Dr Stephen Hudson BDS, MSc, PGD Med law, PGC Dental Law & Ethics

https://www.facebook.com/GdpResources/

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