Montgomery and patient consent: perceived problems addressed

Abstract

The unanimous decision of seven Supreme Court Justices in Montgomery v. Lanarkshire Health Board [2015] UKSC 11 has been much discussed and written about (see, e.g. Christopher Hough QC’s excellent piece in this issue of the journal (pages 6–11). Their ruling was that the adequacy of a doctor’s disclosure of the risks, benefits and alternatives to proposed treatment when a patient’s consent is sought is not judged, as the old law required, by reference to the sanction or approval of a body of other doctors, however small a minority – the Bolam test. Instead, it must be judged by reference to the risks to which a reasonable patient (objectively), and one in the particular circumstances of the given patient (subjectively), would be likely to attach significance, and so would need andwant to knowbefore decidingwhether to consent or not – the ‘Patient Centred Test’. Thus was finally and belatedly overruled as wrong the Law Lords’ long-standing and widely criticised ruling in the case of Sidaway v. Board of Governors of Bethlem and Maudsley Hospitals [1985 AC 871] that the Bolam test applied to consent, which I had long argued (and argued in the Supreme Court) was as illogical as it was unjust. The obvious point was that it is the patient’s choice whether to submit or not to proposed treatment, and it is in reality no real choice at all if made on the basis of information limited and rationed, to an extent which the patient cannot know or guess, by the idiosyncratic, endlessly varied and widely inconsistent views of doctors, whether few ormany. TheBolam test for disclosure legitimised and perpetuated a patronising, condescending and in the modern age obsolete attitude to the doctor– patient relationship. The gross injustice to patients generally of the decision in Sidaway is perhaps best illustrated by the opinion of Lord Diplock in that case that although patients as a whole need not be told any more about their treatment than their doctors may choose to reveal, that would not apply to a judge like himself because (and I quote from his judgement at p. 895):