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Montgomery, consent and historic advice – how far back does the duty go?

Published On: February 2nd, 2023
Author: Inspire Medilaw

In the landmark decision of Montgomery v Lanarkshire Health Board1, the Supreme Court set out the test for doctors’ duties in advising patients and obtaining their consent to treatment. The case was decided in 2015 but related to the management of a birth in 1999. Do the same principles apply in relation to management prior to 1999?

Mr Justice Richie considered the question in CNZ v Royal Bath Hospitals NHS Foundation Trust and the Secretary of State for Health and Social Care2 reported in January 2023, a case which concerned a 1996 birth. In that case, the claimant alleged that his mother had been refused a caesarean section during discussions with a registrar in an antenatal clinic. That allegation failed but the judge found that there had been a failure to discuss reasonable options, seek the mother’s choices and accede to her wishes twice during the 40 minutes prior to delivery.

The judge had to decide whether the duty in Montgomery applied in 1996 as it had in 1999. He described himself as ‘troubled’ by this issue and questioned how far back in time it applied. In referring to Montgomery he said:

“This decision clarified in arrears the requirements in law for clinicians when they are consenting patients. It applied to the 1999 events in the case, but how far back can this decision be taken? I doubt it can be taken as far back as the 1950s or 1960s. I make no decision on those decades. I wonder if it could be applied to clinical practice in the 1980s. Again I make no decision on that question. As for the 1990s, taking into account the rationale expressed for the movement from paternalism to patient choice there may be a tipping point at which the growth of the internet (Berners-Lee released his system in 1993), the changes in societal values and GMC guidelines and the passing of the Human Rights Act 1998 and other legislation came together to generate the change from paternalism to patient choice.”

He alluded to a number of considerations which influenced the Supreme Court in considering a cultural shift from paternalism to autonomy. They included:

  1. Patient autonomy as an increasingly important cultural value. Patients were regarded as persons holding rights rather than the passive recipients of care and also as consumers exercising choices. This was reflected in changing GMC guidance.
  2. The greater amount of information available to patients through media, such as the internet, but also patient support groups, leaflets, the labelling of pharmaceutical products and the provision of information sheets. It would be a mistake to view patients as uninformed, incapable of understanding medical matters or wholly dependent on a flow of information from doctors
  3. The development of human rights law and, in particular, the Human Rights Act 1998.

In relation to 2., Mr Justice Richie suggested the development of the internet, which he dated to 1993, may represent a tipping point.

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He went on to consider whether:

“…a watered down form of the ruling would have applied or whether a tapered growth of the Montgomery duty to consent properly could be the correct approach in 1996”.

The question of how far back Montgomery goes is an interesting and novel one. It is unusual for a case to be decided at trial 27 years after the event and it may be that the issue of management earlier than 1996 will not arise.

The judge’s consideration of this issue are obiter dicta, which means that they were not necessary for the decision and are not therefore binding (although they may be influential). Was he right to question whether the Montgomery duty is limited in its historical application? The Supreme Court in Montgomery declared what the law is and has been, whether it was recognised at the time or not. This is how the common law works. In deciding individual cases, judges apply what they think the law actually is, whether it had been recognised as such or not.

The Supreme Court declared that the law recognised patient autonomy, that patients were entitled to decide which of the available forms of treatment to undergo and established that their consent must be obtained before treatment interfering with their bodily integrity was undertaken. It said that doctors were under a duty to take reasonable care to ensure that patients were aware of any material risks involved in a recommended treatment and of any reasonable alternative or variant treatment. It had little difficulty in looking back from 2015 to 1999 to say what the law was then. There was no suggestion in the judgments that the law had been different earlier.

While what amounted to reasonable care or reasonable treatment options or what patients may regard as material may vary with time, there is no reason in principle why the duty itself should have been different in, say, 1980 from 1999 or 2023. So I doubt that it would be correct to suggest either a ‘watered down’ version of the duty or a ‘tapered growth’ in the past is the correct approach.

[2015] UKSC 11
[2023] EWHC 19 (KC)

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