Breach of duty, advice and consent: the role of the expert

Author: Paul Sankey, Clinical Negligence Solicitor

Published: 12 September 2023

As an expert, you may be asked to report on whether a diagnosis or treatment fell below a reasonable standard. In doing so, you use your specialist knowledge of medical practice in your field and normally apply the Bolam test. However, you may also be asked to comment on whether advice to patients was adequate and whether a patient has given consent to treatment. Beware! Your solicitor may have misunderstood the law here and you risk straying into an area that the court says is not for experts.

The Supreme Court in Montgomery v Lanarkshire Health Board replaced the Bolam test with a new test in relation to advice and consent. The Montgomery test is whether the doctor took reasonable care ‘to ensure that the patient was aware of material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments’.

The test of whether a risk is ‘material’ is specific to the patient. It is ‘whether in the circumstances of a 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 patient would attach significance to it’.
The judgment referred to a fundamental distinction between a doctor’s two roles:

1. considering possible investigatory or treatment options; and
2. discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

The first is a matter of uniquely medical expertise. The judge will need help from an expert to assess the options. You can comment on it. The second is not. It concerns the nature of the doctor-patient dialogue and whether the patient has been empowered properly to assess those options. This is an issue about patient rights. Assessing rights is a matter for the judge and not a medical expert.

As the Supreme Court said, while determining the risks of a particular treatment is a matter of professional skill, determining what should be discussed with the patient is not. While doctors have expertise in relation to the former, it does not follow that ‘… the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment.

The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations)’.

You should therefore not comment on what you think a reasonable doctor would say to this patient – the test is not normal medical practice (what doctors do) but what a patient like this patient would want to know. CPR 35.3(1) says, ‘It is the duty of experts to help the court on matters within their expertise’. Assessing what this patient would want to know is not a matter within your expertise. It is a task for the judge.

It is helpful to distinguish four questions.

1. What is the reasonable range of treatment options for this condition? This is a question for medical experts applying the Bolam test. The authority for this is the Supreme Court’s decision in McCulloch v Forth Valley Health Board.

2. Which of those should be discussed with the patient? This is not a matter of medical evidence. Steer clear.

3. What risks of the recommended treatment and the reasonable alternative or variant treatment were or should have been known to the medical professional in question? This again is a matter for you as an expert applying the Bolam test. The authority for this is the Court of Appeal decision in Duce v Worcestershire Acute Hospitals NHS Trust. The Supreme Court endorsed this decision in McCulloch.

4. Which risks were material to this patient (and therefore should have been discussed)? This again is not a matter of medical evidence. Again, steer clear.

The role of the expert witness in a nutshell

There have been reported cases where judges have cited comments from experts on questions two and four. That is disappointing – it suggests that the lawyers have not restricted their questions to the experts appropriately and experts have not recognised where the limits of their expertise lie. You may be asked to report on these issues but you should not.

There are therefore two questions you can and should address but two you should leave. If your solicitors ask you to answer them, please point them to what the Supreme Court actually said in Montgomery.

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