In July 2023, the United Kingdom Supreme Court revisited the case of Montgomery v Lanarkshire [2015] UKSC 11 which developed the Prudent Patient test for consent to address the question of what patients should be told about alternative treatment options.
In the Montgomery case, it was established that practitioners must inform patients of the material risks, benefits and reasonable treatment alternatives for the purposes of informed consent to medical treatment. The Supreme Court took time to carefully define what constitutes a ‘material risk’ for these puproses. This led to a two point test of materiality whereby practitioners should consider:
1. An objective test of what a reasonable person in the patient’s situation would consider significant, and therefore want to know
2. A subjective test of what the particular patient would consider signficant given their character, value and unique set of circumstances.
This new test, coined the prudent patient test, required an active dialogue between patient and practitioner which set the foundations of supported or shared decision-making processes. However, the question of reasonable treatment alternatives was not clearly defined which is all the more interesting given that the case of Montgomery v Lanarkshire [2015] concerned a failure to inform the patient of reasonable alternatives.
Montgomery
In the case, Mrs Nadine Montgomery, who was of short stature and a type 1 diabetic, had raised concerns for the safe delivery of her son who was larger than average. Mrs Montgomery was not informed of the risk of shoulder dystocia nor of the option of a caeserean section. The birth was highly traumatic as the shoulder dystoica materialised and Mrs Montgomery’s son suffered from hypoxia and subsequently cerebral palsy. Mrs Montgomery argued that had she been informed of the option of a caesarean section then she would have opted for this.
Given the lack of clarity on the parameters of what consitutes a reasonable – and therefore disclosable – treatment alternative – there was ambiguity as to whether it was a question of professional judgement or should be subject to the two-part test of materiality that the Supreme Court Justices outlined in their judgement.
McCulloch
The case of McCulloch v Forth Valley Health Board [2023] was brought by the widow of Mr McCulloch who was admitted to hospital in March 2012 with suspected pericarditis. He was initially admitted to ICU however his condition improved and he was dischared home a week later. However, Mr McCulloch was readmitted shortly thereafter complaining of chest pain. A cardiologist reviewed Mr McCulloch’s echocardiography and noted only a small pericardial effusion. Mr McCulloch was no longer complaining of pain and given the lack of clear diagnosis of pericarditis, the cardiologist did not prescribe non-steroidal anti-inflammatory drugs (NSAIDs). The cardiologist did not discuss the option of the NSAIDs with Mr McCulloch who was then discharged some days later. Mr McCulloch suffered a cardiac arrest at home and died with the cause of death identified as pericarditis and pericardial effusion. Mr McCulloch’s wife brought an action in negligence claiming that the cardiologist should have advised Mr McCulloch of the NSAID option.
The Supreme Court considered who decides what a reasonable treatment option is.
The court had two options in addressing this question:
Apply Montgomery’s Test of Materiality
Accordingly, practitioners would need to consider what treatment options a reasonable person in the patient’s situation would consider significant and, what the particular patient would consider significant given their values, character and circumstance. The potential benefit of this option is that the treatment options given to the patient are more likely to reflect that which is meaningful to the patient and therefore less likely to be the option that the practitioner considers best for the patient. In this way, the practitioner must give consideration to the non-clinical factors which affect the patient’s likely decision-making.
Apply Bolam’s Test of Professional Judgement
Accordingly, practitioners would apply the Bolam Test which considers whether a practitioner has acted in accordance with a practice accepted as proper by a body of medical option – otherwise knonw as the test of professional judgement. This test has been critised for its failure to meaningfully involve patients and for potentially facilitating paternalism.
Whilst in Montgomery the Supreme Court jusitices highlighted the importance of treating patients as adults, capable of making their own decisions, in McCulloch they asserted that the latter test – that of professional judgement – should be applied to the question of reasonable treatment options. The Justices asserted that “it is not being suggested that the doctor can simply inform the patient abut the treatment option or options that the doctor himself or herself prefers” however, there is now no legal duty upon doctors to consider the reasonable person or particular patient standard in relation to treatment options.
The decision reflects the Supreme Court decision to protect practitioner autonomy when deciding if a treatment altnerative is reasonable – therefore protecting the application of professional judgement and skill. The decision also recognises that there could be a risk of overwhelming a patient should all possible treatment options be disclosed, particulatly where a practitioner only views a few of those options to be reasonable. A recent bulletin published by the Royal College of Surgeons of England advises that the “prudent surgeon may…consider the reasonable treatment options for the patient [and] ensure that no reasonable option is omitted, seeking a second opinion if appropriate”.
Interested in finding out more?
