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The ethics and morality of the Montgomery ruling

By 10 July, 2018 August 3rd, 2018 Members

Make yourself a coffee, this is a long read

Montgomery v Lanarkshire Health board was a 2015 Supreme court case that has far reaching implications for consent. It involved the care of a Nadine Montgomery who was not specifically warned of the risks that her diabetes presented to her pregnancy. The specific risk that resulted in the harm to her new-born child was shoulder dystocia causing umbilical cord compression and cerebral palsy. Due to foreseeable problems during the birth, the child was born with dyskinetic cerebral palsy. In essence the case changed the common law on how medical consent should be achieved and, in my opinion, cemented and enshrined an impossible standard. I will admit that, before doing any research I have an inherent bias and I am starting this essay with the belief that Montgomery is a bad law that will damage healthcare provision in this country.

I would like to take a moment to discuss the path the English common law took to reach the Montgomery ruling.

The Common Law
Prior to Montgomery, the courts had held a different opinion on consent and negligence. The first case of any note was Bolam v Friern Hospital Management Committee (1953). The legal profession has reportedly never been a fan of Bolam, arguing that it reinforced medical paternalism. At the time, Mr Bolam’s solicitors had argued that the claimant should have been restrained and sedated during his electroshock therapy. However, the judge did not agree, because it was found that a reasonable body of opinion did not feel such measure were routinely needed. In dismissing the case, Justice McNair stated

“…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men…”

So, in the process of obtaining consent, all a dentist had to do was show that his consent process was in accordance to that accepted by a reasonable body of opinion. The opinions of the patient, it could be argued, were secondary to the concerns of the medical professional. This is where we derive the Bolam test from. The law states that the medical professional has a duty of care when treating his/her patient, but it is the profession through peered opinion that sets the standard of that care.

It can be argued that the Bolam ruling was an adaptation of the ruling in the Scottish case Hunter vs Hanley (1955): In this case, Lord Patrick outlined the three tests needed to prove negligence:

i) It must be proved that there is a usual and normal practice
ii) It must be proved that the defendant had not adopted that practice
iii) It must be established that the course the doctor adapted is one which no professional man of ordinary skill would have taken

The Bolam ruling was reinforced by Lord Scarman in Maynard vs West Midlands RHA (1984). The case revolved around a patient presenting with tuberculosis-like symptoms. Instead of waiting for results of sputum tests, the medical staff involved went ahead with more invasive tests that resulted in the patient being harmed. The expert opinion brought by the defence stated that the actions of the clinicians were reasonable, despite there being an opinion that said otherwise. Lord Scarman judged that it was to be accepted that there were differences of opinion and that these counter opinions didn’t matter so long as a reasonable body of opinion supported the practitioner’s actions. The case was found for the defendant.

The first real test of the Bolam ruling came with Sidaway Vs Board of Governors of the Bethlem Royal Hospital (1985). Whereas Bolam had been more an issue regarding the actual way treatment was provided, Sidaway was a case primarily about consent. The case revolved around a surgeon who performed cervical spine decompression without warning the patient of the risk of paraplegia. Said paraplegia occurred and the patient sued, stating that if she had known the risks she wouldn’t have gone ahead. The patient was, in essence, demanding the court respect and acknowledge her perceived right to autonomy. In Sidaway, the court ruled that the Bolam test was the correct test when judging consent issues and the case was found for the defendant. It was deemed that a reasonable body of opinion would not warn about the risk of paraplegia in this particular operation.

Personally, I think the first real signs that Bolam was under threat was in the Australian High Court case Rogers Vs Whitaker (1992). This was a ruling that determined that a material risk was something that a reasonable person would attach significance to and that it wasn’t perhaps for the clinician to determine what a material risk was. That was, in my opinion, a warning of things to come.

It was another 4 years before the first real cracks in the Bolam defence appeared via the English courts. In Bolitho v City and Hackney Health Authority (1997) the issue of the legitimacy of expert witness evidence was raised. Although the judges found for the defendant, the Bolitho ruling added that, although Bolam was still valid, the expert witness evidence that was offered in defence would need to be rational and logical. This, in turn, meant that the treatment itself would need to follow the same rationale.

This ruling was further reinforced in the 1999 Woolf reforms which governed how expert witnesses had to behave, as laid out in Part 35 of the Civil Procedure Rules. The reforms (Department of Justice 1999) removed the risk of “the expert witness for hire” and made it mandatory that all expert witnesses gave their evidence for the benefit of the court, not the client. It also limited the extent that solicitors could influence the reports written by expert witnesses. They also established a legal requirement for expert witnesses to declare their ability and competence to comment on the matters at hand. On a side note, until very recently, there has been a very real issue with GDC employed expert witnesses not understanding their remit and thus displaying severe bias in their reports.

Another test on the level of risk involved in care was seen in Pearce V united Bristol Healthcare NHS Trust (1998). As with Montgomery, this was a case involving a pregnant woman who suffered harm at the hands of medical staff. She claimed that she was not warned of the risk of stillbirth, and that had she been warned she would have insisted on a caesarean (very much what happened to Ms. Montgomery). Although the judges found for the defendant, there were clear indications that patient autonomy was starting to be pushed ahead of medical paternalism.

Chester V Afshar (2004) gave a further warning of where the common law was heading when it came to consent. The surgeon in question was found to have failed to warn about the risk that resulted in the surgery he performed. Although the surgeon had not been negligent in his performance of the operation, the claimant showed that, had she been warned about the risk, she would not have had the surgery done at that time. This was thus again a consent issue. As Lord Walker stated:
“Bare “but for” causation is powerfully reinforced by the fact that the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon’s duty to warn.”

Lord Hope had similar views. Basically, the surgeon was found to have violated the patients right to decide what was right for them. Clearly, the public and the judiciaries acceptance of medical paternalism was coming to an inglorious end. Unfortunately, (and I can only speak from personal experience here) is seems the medical field has been slow to understand this.

Then came Birch V University College London Hospital NHS Foundation Trust (2008). This case involved the risk-benefit analysis of different procedures. In his conclusion, Justice Cranston found for the claimant
“Where (the defendant) fell down was in failing to discuss with Mrs Birch…. the imaging methods and their comparative risks. For that reason, the defendant is liable to her for breach of duty”.

What we can see in these cases is an increasing level of recognition by the courts that patient autonomy and patient self-determination were important, which I applaud. With that framework in place, we will now turn to the Montgomery case itself.

Montgomery
The claim brought by Nadine Montgomery went all the way to the Supreme court on appeal, a long and tortuous path for everyone involved. Because of the Montgomery ruling, Bolam no longer applies when it comes to consent, Montgomery introducing a new test of materiality
(From the BDJ 2017):
“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”.

The situation is best laid out, I feel, by the following quote:
“Patients are now entitled to receive any information they ask for in order to make their own decisions, regardless of whether the health professional would usually explain the nature of the information to the patient. Save for limited circumstances, this is also regardless of any professional judgement as to whether the information is relevant. The default position is now that information to be shared is ‘what the patient wants to know’ not ‘what the health professional wants to tell’. The ‘prudent patient’ has arrived” (White, 2016, p.33).

The thing is, for dentists especially, this position already existed before Montgomery. Montgomery may have changed things with regards to the Common law but it can be strongly argued that the Common law, through Montgomery, was only catching up to the regulatory guidance that was already in place. Both the GMC and the GDC had issued guidance about obtaining valid consent well before the Montgomery appeal case occurred. The GMC, for example, were advocating obtaining valid consent as far back as 1995, although no real official guidance arrived until their 2008 guidance called “Good Medical Practice and Consent: Patients and Doctors making decisions together” (GMC, 2008).

The GDC 2013 Standard for the Dental team also outlines what the dental regulator expect when it comes to consent via Principle 3. I have several issues with the GDC guidance as it presently stands, and it’s important to mention this here because I think it directly reflects the problems I perceive with Montgomery. Firstly, there is the guidance “3.1.3: You should find out what your patients want to know” (GDC, 2013). How are we as clinicians supposed to do this? I can ask a patient countless questions, but I can never be sure that I have provided them with all the information they require.
Secondly, there is the guidance “3.2.1. You must provide patients with sufficient information and give them a reasonable amount of time to consider that information” (GDC, 2013). There is no definition of sufficient and reasonable. One patient will want to know everything whilst another won’t want to know anything. As this is a mandatory requirement by the GDC (a must) how do we as dentists meet this requirement 100% of the time? I would argue it is impossible to do so.

I personally feel that the Montgomery ruling was an inevitability. Firstly because of the regulatory stance to consent that many in the professions were ignoring, but also our adversarial legal system demanded it. You just can’t have a highly litigious system such as ours where medical and dental professionals are obtaining proper valid consent differently in the eyes of the regulators and the lawyers. But the question we need to ask now is whether Montgomery was the right ruling, or whether it will cause more problems than it solved.

The ethics of Montgomery – Autonomy
It would be difficult to argue that Montgomery does not respect the right of the patient to their autonomy. Framing it purely from a dental perspective, they have the right to information about the treatment proposed. Dentists rarely encounter situations where the information they have to relay is psychologically upsetting or relating to matters of life and death. It can be difficult for dentists to accept, because of the various options available, that the option of no treatment is invariably always there. Should a patient choose the no treatment option, it can definitely lead to further issues in the future. We can respect the patient autonomy and accept that they have the right to make their own decisions based on the information they want to receive to make that judgement, but how do we live with that as ethical practitioners knowing the damage the patients may well be doing to themselves? Many are critical of medical paternalism, but there are those who defend the practice due to the complexity and difficulty involved in understanding the medical procedures proposed. How can we, as clinicians really relay the risks involved in a procedure when the science behind it is so complex, and at the same time so poor? Even something as seemingly simple as water fluoridation has no real hard data (Cochrane Review, 2015) to back up its effectiveness and lack of harm. We can never be sure how effective our treatment will be, and there is always the risk that the information we give the patient is wrong for that individual. That being said, well-established treatments work as expected in the majority of cases.

There are challenges with Montgomery when it relates to autonomy. What happens with the patient who doesn’t want treatment, but refuses to be told the consequences of such? Do we need to obtain consent to give consent? Faced with a patient who stated “I don’t want to know anything”, do we respect that decision or plough on regardless with our established consent process? This, however, is a small factor. On the whole, I feel that the Montgomery ruling respects the right to autonomy and the profession will have to adjust to the new reality.

The ethics of Montgomery – Beneficence
Giving patients the consent they need to make a decision about their own health is not necessarily a benevolent act. If it is, it is more likely an example of obligatory beneficence. In the current litigious and regulatory environment, it could be argued by some to be, at least in part, an act of self-defense by the clinician. The consent process should be a dynamic give and take between patient and clinician where together they co-diagnose the problem and decide together on the way forward for treatment. The whole ethos, however, falls apart when fear and resentment are added into the equation. Fear of being sued and being referred to the GDC, and resentment about the culture dentists now find themselves working in does not reflect the spirit of beneficence. If this was the aviation industry (where “Black Box Thinking” is prevalent), where a culture of learning and growth rather than punishment and retribution exists, Montgomery would be a welcome addition to the law. However, in our adversarial system, it is my opinion that the right things will, in a lot of cases, be done for the wrong reasons.
This is not to say that clinicians do not have an obligation to engender beneficence in their role towards their patients. We all want to help our patients as best we can and thus avoid doing harm. But what if, by giving the patient the information they crave, the patient makes a decision that harms themselves? How can such thus be for their benefit? We inform them there is a selection of treatments to address a problem in the consent process, only for the patient to decline treatment or pick the option we feel is wrong for them. I have seen this several times, only for the patient to return with a swollen face and a systemic infection. Montgomery respects beneficence to a degree, but there will be times where information overload and a patient’s own bias may result in the patient doing the wrong thing. In such a case, a dentist’s compliance with Montgomery would not be in the patient’s benefit.

The ethics of Montgomery – Nonmaleficence 
Do no harm. To not obtain consent is, in English law, an act of battery. So clearly one can imagine that going out of our way to get clear, valid consent is a nonmaleficent act. By giving the patient the desired information, and by performing treatment competently, we can, in the majority of cases avoid harm to the patient.
There is, however, a perverse incentive in dentistry that is rarely talked about. Dentists profit directly from treating the patient, and although we can try and deny it, there will be some dentists who would like to veer the patient towards one treatment rather than the other. It’s not just money either. Dentists prefer doing some treatments over others, and this bias can cloud the decision-making process in a paternalistic system. Finally, in a fixed cost system like the NHS, there is a perverse incentive towards supervised neglect and to choose simple and quick treatments over expensive and time-consuming activities such as root canal therapy. This is arguably one of the major reasons for the development of the GDC standards on consent already discussed, and I feel that the Montgomery ruling is a powerful tool in combating these less than ethical approaches.
The fact is though that we should not, in an ideal world, need law and guidance to force practitioners to act ethically. It should be a natural part of the job. I think Martin Kelleher summed it up best in his discussion of the Daughter Test. The problematic ethics facing the profession can best be summarised by the following comment
“Porcelain deficiency disease’ is an imaginary disease that apparently can only be cured by the removal of sound enamel and dentine and replacing it with porcelain” (Kelleher, 2010, pg.5)
There is another argument that, by giving patients information that we wouldn’t normally relay to them, we can, in fact, scare them into delaying or refusing treatment. I think on balance however, Montgomery helps support the ethical concept of nonmaleficence for most patients.

The ethics of Montgomery – Justice
When it comes to the concept of consent, Montgomery does help promote equality in how consent is obtained across the population. Even if it could be argued that the compliance of Montgomery by professionals is based on fear and from a perspective of self-preservation, all patients should be treated equally. The problem with this is that not all patients are being treated equally at present, many healthcare workers still taking a paternalistic view on consent. And whilst this isn’t the fault of Montgomery, it does produce an unwanted side effect. The risk of increased litigation.

The concept of justice also concerns the equality of the delivery of care. The majority of healthcare in the UK is provided through state funding, the pot of money thus being finite. And whilst there is definite inequality on the provision of this healthcare due to regional variation, I would argue that Montgomery will actually worsen this provision due to the increased litigation it will cause as well as the increase in the time needed for compliance recording. Even before the case was brought to the High Court, medical professionals were practising in a climate of fear. As reported by The Telegraph (Donnelly, 2017), 80% GP’s now routinely perform unnecessary tests just to cover their own backs. This adds to the strain on the health service and increases the cost to private health insurance. There will also be an increased strain on healthcare provision due to the amount of extra time that will be needed to obtain consent under the Montgomery provision. More time on patients means less availability in a country where the NHS dental provision can only really cover 50% of the population.
This climate of fear, whilst not exclusively down to Montgomery, will only be made worse by the ruling. The risk that more dentists and medics will risk a claim of battery instead of negligence will dishearten an already demoralised healthcare community. Without serious reforms to medical negligence law, Montgomery risks bankrupting an already cash-strapped NHS, as well as pushing private fees up out of the range of the average individual. How much money does the NHS have to set aside to deal with potential litigation (presently nearing £60 billion) before the problem is addressed (Behrmann, 2016)?

The Morality of Montgomery
Should the Common law determine how a dentist and a patient interact? If a dentist is to be allowed clinical freedom, which is the freedom to use his experience to treat the patient to the best of his ability, how much of a role should the Common Law have in that?

One of the problems with Montgomery is that it risks replacing the tort of negligence with the tort of battery. Prior to Montgomery, it was well established that the courts preferred the route of negligence to that of battery. To quote Judge Bristow in Chatterton v Gerson (1981):

“Once a patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass.”

Even in Border v Lewisham and Greenwich NHS trust (2015), where a doctor put an IV line into the patient against her express permission (causing painful oedema when there was no urgent need for the IV line), the Court of Appeal rejected an attempt to add a claim of trespass, preferring the tort of negligence. To quote Judge Bristow from Chatterton v Gerson again

“It would be very much against the interests of justice if actions which were really based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass.”

Whilst there has been no recent move towards bringing cases under battery, it is a very real risk. This would potentially turn the patients right to remedy for harm caused by negligence into a retributivist which hunt. Whilst not based on consent, we have seen signs of this in a recent negligence case. The Jack Adcock case, in my mind shows the dangers of doctors being viewed as criminals. Whilst the doctor involved was at fault, so were the systems in the hospital she worked in. We exist in a “where there’s a blame there’s a claim” culture, and just law runs the risk of being used by the greedy and the vengeful. Should dentists be punished, even when they are trying to do their best for a patient?

Conversely, it could be said that Montgomery could make health care more Utilitarian. If the risk of an accusation of battery was very real, then it would surely act as a deterrent and finally reform the paternalistic, clinician centred culture that had existed in this country for centuries. If every healthcare worker were to establish a tried and tested method for obtaining consent under Montgomery it would help the profession counter the growing litigious culture. Showing that valid consent was obtained is a powerful tool in defending against negligence in the absence of res ipsa loquitur. If the profession could find a way to adapt, it could be a powerful tool in stemming the tsunami of litigation.

Summary
I am now not convinced that the Montgomery ruling is as big a disaster that I first envisaged. The monumental problem that I see with it is finding a way to obtain consent that conforms with Montgomery. I still feel it is impossible to gain consent 100% of the time which can leave a clinician vulnerable to legal sanction, even when they were doing their best. There needs to be reassurance that the threat of battery will not be one taken up by the litigators, as this would be disastrous for the profession. There also needs to be concerted effort in the medical profession on the whole to reject the prior paternalistic approach with government action to address the litigation culture we now live in. If we can get through those points, and if we can have some clarity on just how much information we are expected to give patients, I think Montgomery might actually be workable and beneficial to patients and clinicians.

Benefits of Montgomery
• Increased patient autonomy
• Decreased patient litigation if the profession adapts
• Decreased litigation through more patient centred practice
• Increased rapport building between clinician and patient in an attempt to elicit information
• Brings the Common Law up to the regulatory standard

Risks with Montgomery
• Too much information being delivered to patients.
• The patient who attends after the event demanding to know why they were never warned about an event that could never be envisaged.
• Negligence replaced by the tort of battery
• In the past, the information was that which the reasonable professional would impart about risk. Now there is no standard on which to base consent on (for example the mandatory warning of the 2% risk of ID nerve damage from taking a wisdom tooth out). The material risk that the reasonable patient would need to know will be defined by patients, judges and lawyers which may make the situation untenable
• The immediate risk of the increase in litigation and the financial ruination of socialised medicine.

If you want to know more about Montgomery, read Andre Haigh’s article in my new book “The Dentist’s Survival Guide” available from Amazon and

https://gdpresources.co.uk/dentists-survival-guide-2

 

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

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