In Spencer v Hillingdon NHS Trust (April 2015)23 the patient had bilateral pulmonary emboli after a hernia operation. Others have raised questions about the implications for the legal treatment of clinical judgment, suggesting that it represents “a radical move away from English law’s traditional respect for clinical expertise.”9. He died seven years later. Montgomery was retried. Having difficulty registering or logging in? This test has three parts which, as stated by Lord Clyde, must be met: First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. The House of Lords ruled for the Health Authority in this case and within the ruling they applied a further element to the Bolam test: that of logic of a medical opinion. The law on consent has progressed from doctor focused to patient focused. This stands even if other doctors may have acted in a different way. Contributors and sources: The authors were organisers (ET, WW, JEN) and participants (SWC, AS, ESC) of an event in the Edinburgh Medical Debates series on the ethical and legal impact of the Montgomery case.6 ET is a medical student at the University of Edinburgh and was primarily responsible for research and initial drafting of the manuscript; SWC is a researcher in bioethics and was responsible for subsequent drafting, critical revisions, ethical analysis, and part of the legal research; ESC, WW, and JEN are clinicians and were responsible for conceiving the idea for the manuscript, critical revisions, and obstetric medicolegal advice; AS is a barrister and QC in both Scotland and England, specialising in medical negligence, and was responsible for legal advice, analysis, and critical revisions. Patients are not always aware of the facts of their treatment after consent related discussions,26 and they are influenced by the way in which information is presented (the “framing effect”).27 But the difficulties of conveying information about treatment and risks should not be taken to indicate that patients are incapable of understanding medical information or that patient autonomy in decision making is meaningless. Mrs Montgomery has type 1 diabetes, which increases the risk of having Case Summary of Montgomery v. Louisiana: In 1963, 17-year-old Montgomery killed a deputy sheriff in Louisiana. The case was made that as the consultant had not discussed the risk of shoulder dystocia, the potential significant consequences of it occurring and the alternative option of a Caesarean section that negligence had occurred as far as consent is considered; Mrs Montgomery was not able to make a fully informed decision without full information on all the options. Mrs Montgomery was around five feet tall, and was also diabetic, which often results in a larger foetus. As the risk of serious consequence was felt to be so small, it was not discussed. You do not need to be a member of the College in order to create a login. 2 Doctors are now obliged to take ‘reasonable care to ensure that the patient is aware of any material … The ruling does not include any specific ‘percentage cut off’ for a risk as this cannot be relied upon to identify what risks could have such an impact on a reasonable patient’s judgement. This ruling supported the concept of material risk as previously described by Lord Scarman in his opposing view to the Sidaway ruling. Justices. New users must create a login. She expressed general concerns throughout her antenatal care. This question is for testing whether or not you are a human visitor and to prevent automated spam submissions. She argued that had she been warned of the risk of this happening she would have taken longer to consider and reach her decision to have the surgery. The Montgomery test places a legal obligation upon clinicians to provide information to patients about their treatment. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. Information overload is unlikely given that information should be tailored to the patient. Mr Afshar appealed to the Court of Appeal which again found in favour of Miss Chester. If the action of a doctor was found to be an illogical course of action then they could be found to be negligent despite having a group of doctors who would have acted in the same way. In his appeal to the House of Lords, Mr Afshar focused on the grounds of causation as Miss Chester was likely to have consented for the operation and that the operation would have carried the same risk, even if it had been performed at a later date. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. Mrs A v East Kent Hospitals University NHS Foundation Trust  EWHC 1038 (QB). It was argued by his mother that there had been negligence in his care as, had Dr Horn come to review her son and had he been intubated, then his brain damage and death could have been prevented. They held that a patient cannot make a fully informed and proper decision if they have not been presented with all the facts that could influence that process. The Lords proposed that the scenario where the action was thought to be illogical would be a rare one. Consequently, he was born with a dyskinetic form of cerebral palsy. Maddox v. Montgomery United State Court of Appeals Eleventh Circuit 718 F. … She had seen her consultant at two week’s over her due date on 27th November to request induction or a Caesarean section. 1966). Provenance and peer review: Not commissioned; externally peer reviewed. RCOG’s difficulty in providing guidance perhaps reflects the unique nature of obstetrics—essentially helping two patients through a normal and inevitable physiological process. Lord Diplock felt that the right amount of information to be disclosed was to be decided by the medical profession and that the right of the patient at that time was a right to be treated in the best way that a doctor thought they should be. A patient, Miss Chester, was under the care of a neurosurgeon, Mr Afshar, for a 6-year history of back pain and she had been shown to have a vertebral disc protrusion on an MRI scan. Log in using your username or email address. And, in any event, the Supreme Court does not need to cite authority when revising or limiting its own case law. The Lords felt that you could only accept a body of medical opinion if the action they supported was felt to be a logical one. In conclusion, it is important to remember that this ruling involves both the exploration and discussion of risks and options, not just risks alone. Although the Medical Defence Union and the Medical Protection Society have each issued statements and updated their guidance, as have some royal colleges (such as the Royal College of Surgeons), other bodies such as the GMC and the Royal College of Obstetricians and Gynaecologists (RCOG) have yet to do so. This case was brought by the mother of Patrick Bolitho, a young boy who died following a cardiac arrest in hospital that resulted in severe brain damage. Log in using your username or email address. Get Montgomery v. Louisiana, 136 S. Ct. 718 (2016), United States Supreme Court, case facts, key issues, and holdings and reasonings online today. She has type 1 diabetes and was concerned during her pregnancy that the size of her baby might lead to difficulties with a vaginal delivery. The Lord Justices found that, in this case, her surgeon had not been negligent in not informing her of the risk of paraplegia. Montgomery v Lanarkshire Health Board  SC 11  1 AC 1430. Lanarkshire Health Board was found liable in negligence as Mrs. Montgomery was not But doctors should have already been following GMC guidance, which highlights the importance of communication.13. In making this ruling, the Bolam test was applied which meant that as the usual practice of a body of reasonable doctors in the field of neurosurgery was to not have mentioned this less than one per cent risk. Ethically, it clarifies the existing shift towards a more cooperative approach in the consultation room. Montgomery and informed consent: where are we now? Her two-year-old son had been admitted to hospital with croup under the care of two doctors, Dr Rodger and Dr Horn. State v. Montgomery, 181 So. In reality, medical decision making involves a nuanced negotiation of information. The doctor’s role is to ensure that relevant information is presented to enable the patient to use it meaningfully. The doctor might think that disclosure of certain information could lead the patient to a decision that is not in their best interests, as was true for the Montgomery case. The doctor’s normal practice was to give ECT without a relaxant and without any physical restraints; the doctor would support the patient’s chin and shoulders while nurses stood at either side of the treatment couch to prevent the patient falling. Montgomery a caesarean section. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not … What was worse was the treatment by the hospital staff, police and the court system when she reported it, and the afttermath of the culprit's apprehension. The Bolam test was affirmed in Sidaway v Bethlem Royal Hospital Governors and others,2 although the ruling was not unanimous, with judges placing different weight on the patient’s right to make informed treatment decisions versus the doctor’s professional judgment in disclosing information. Bolam v Friern Hospital Management Committee  1 WLR 582. In practical terms, the ruling should apply at least back to 1999, when Montgomery saw her obstetrician. If you are unable to import citations, please contact He felt that the practice of gaining consent should be viewed differently from that of the skill of diagnosis or carrying out a treatment where the body of medical opinion does hold weight. In Mrs A v East Kent Hospitals University NHS Foundation Trust (April 2015),25 the claimant’s baby, who was conceived using intracytoplasmic sperm injection, had a chromosomal abnormality. He finally appealed to the House of Lords. Some doctors feared that more stringent disclosure requirements would risk overwhelming patients with information, causing distress or leading them to make poor decisions, while doctors’ time would be taken up with lengthy explanations, creating a drain on healthcare resources. Please note: your email address is provided to the journal, which may use this information for marketing purposes. He also suffered an avulsion of the brachial plexus, rendering his arm useless. Montgomery was 17 years old at the time of the crime. Previously, the Bolam test14 in England and the Hunter v Hanley test15 in Scotland were used to determine what should be disclosed. Summary: Justin reviews the issues of consent in clinical negligence cases in, and subsequent to, the case of Montgomery. In his ruling, Lord Hope stated: The injury was intimately involved with the duty to warn. Login The Montgomery ruling has not radically changed the process of consent; it has simply given appropriate recognition to patients as decision makers. On 2nd December her daughter was found to have died in utero. Many organisations (in particular the General Medical Council, who intervened to make submissions in the case) said that the Montgomery decision had simply enabled UK law to catch up with current GMC guidance; others hailed it “the most important UK judgment on informed consent for 30 years.”4 Doctors have expressed their concerns about its potentially radical effects on patient care and clinical practice.5 We held a public debate in 2015, including doctors, lawyers, and medical students, which showed renewed tension between the professional discretion of doctors and patients’ choices6; indeed, the verdict has been characterised as supporting patient autonomy over medical paternalism.3 7 8 9 But what are the implications for doctors’ practice and their legal liability? Update on the UK law on consent]. Medical staff performed the appropriate manoeuvres to release Sam but, during the 12-minute delay, he was deprived of oxygen and subsequently diagnosed with cerebral palsy. His comments also included the concept of the therapeutic exception where it would be acceptable for a doctor to withhold some information if it was felt that disclosure would harm the patient. Summary of implications of Montgomery What is the Montgomery Test? ECT without the prior administration of a muscle relaxant results in muscle spasms and this has a known, although small, risk of bone fracture as a result. The concept of the therapeutic exception is also mentioned as a rare occurrence when a doctor may feel that discussion of risks will result in harm or detriment to the patient’s health and wellbeing. Expert witnesses, representing either side, gave evidence that there are a number of different techniques used when administering ECT: some use muscle relaxants, some don’t; some use restraints, some don’t; some use manual control only, some don’t. RCOG has proposed pilot programmes to identify what resources women, clinicians, and health services need to comply with the Montgomery ruling. Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section. The court found that a doctor’s actions are not necessarily negligent if they are found to conform to a practice that is accepted as reasonable and proper by other reasonable members of the profession. This decision followed a 16-year legal ﬁ ght which concluded with Mrs Montgomery’s claim being upheld by the Supreme Court. 1999 - Nadine Montgomery pregnant with 1st child Concerned regarding difficulties with delivery due to size of baby. Since the Montgomery ruling, several attempts have been made to introduce a consent based claim to cases that were under way before the decision. The judge considered the Montgomery ruling and found that failure to inform the patient was a breach of the duty of care. The Case. The court rejected this, holding that the Montgomery ruling did not create a right to informed consent as an independent cause of action, but simply set a new legal standard for the duty to disclose. Written and curated by real attorneys at Quimbee. The Montgomery test was defined in the case 1of Montgomery v Lanarkshire Health Board. These issues are not always pursued, but obstetric litigation practice has noticeably changed, making professional training and clarity with respect to guidelines an even higher priority. Constitutionally, the Supreme Court cannot make new law; it can only state what, in theory, the law has always been. Mrs Pearce argued that had she been informed of this risk she would have opted for a Caesarean section as this would have posed least risk to her baby. Montgomery is, of course, about informed consent: warning of risks, advising of reasonable alternative treatments and obtaining valid consent. Documentation of this discussion and the options offered is important and is required by the GMC guidance on the same. Guidance in effect at that time from the GMC,17 BMA,18 NHS, and the Scottish Office19 supported a doctor’s duty to disclose relevant information and risks. -- Download Leichhardt Municipal Council -v- Montgomery  HCA 6 as PDF--Save this case. UKSC 2013/0136. The argument in this appeal was that is not appropriate to use the accepted practice of a body of reasonable medical practitioners when consent is considered. Training and educational materials must be fit for purpose. Miss Chester had the spinal surgery and suffered a worsening in her symptoms. 2016), 15-1724, Doe v. Backpage.Com, LLC. For some, Montgomery represents a defining moment in medical law … Her claim was that the accident, and her injury, were the result of Hunter not exercising the usual standard of care and competence that was his duty while performing the injection. When she was raped, Ellen thought it was the worst thing to ever happen to her. The risk for such surgery was held to be less than one per cent and Mrs Sidaway felt her surgeon had been negligent not to include this risk in the discussion. He was convicted and received a mandatory life-without-parole sentence. Two years after the Supreme Court’s decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice. The test of materiality defined in the Montgomery ruling was whether “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.”1 The solicitor representing Montgomery spoke of the decision as having “modernised the law on consent and introduced a patient focused test to UK law.”16. Federal Cases ; What was sufficient information to make a balanced decision could only be decided by the patient, not their doctor, and it should be presented along with information on reasonable alternative options. The appellant, Nadine Montgomery, gave birth on 1 October 1999 and, as a result of complications during delivery, her son was born with cerebral palsy. Sidaway v Board of Governors of the Bethlem Royal Hospital and others  871 AC. He was convicted of murder and sentenced to death, but the Louisiana Supreme Court reversed his conviction after finding that public prejudice had pre-vented a fair trial. Despite expressing concern to her consultant about whether she would be able to deliver her baby vagi… 11 Mar 2015. Georgiev v Kings College Hospital NHS Foundation Trust  EWHC 104 (QB). The ruling overturned a previous decision by the House of Lords,2 which had been law since at least the mid 1980s.3 It established that, rather than being a matter for clinical judgment to be assessed by professional medical opinion, a patient should be told whatever they want to know, not what the doctor thinks they should be told. This would have meant that although failing to see Patrick represented a breach in her duty of care, it was not a breach that resulted in his eventual death. Thus, although the test is focused on patients, doctors are not liable for every omission of disclosure to which a patient later objects.”25. All were in agreement that there was a body of medical opinion the supported the use of ECT without relaxants and without physical restraints as it was thought these could compromise the airway or increase the chance of injury. This is an Open Access article distributed in accordance with the Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, which permits others to distribute, remix, adapt, build upon this work non-commercially, and license their derivative works on different terms, provided the original work is properly cited and the use is non-commercial. Some clinicians said that retrospective application of the judgment could “open the floodgates” for claims in relation to doctors’ past actions.10 Others thought that the Montgomery ruling was unlikely to have this effect, however “excited the claimant law firms might become initially.”11 Legal opinions were reserved, describing the ruling as “the belated obituary, not the death knell, of medical paternalism.”12 Some argued that the standard imposed by the Montgomery decision merely reflected good practice as already specified by the GMC13 and would make little practical difference to clinicians.8 Nevertheless, the concern generated by the ruling might affect doctors’ behaviour and other potential cases. A man who was punched in the face and then kicked by a Montgomery County sheriff’s deputy following a police chase has sued two deputies, the sheriff and the county in federal court. You can also use your College Personal ID (PID) if you have one. A further judgment was issued in this case on appeal which refused the amendment. A second concern was that the ruling would encourage “defensive medicine,” shifting the focus from helping the patient to protecting the doctor. A patient was to be informed of any common or serious potential consequences or complications and the determination of what was deemed common or serious was for the doctor to decide, not the patient. Material risk is a risk that is deemed to be illogical would be supported by a body of.... The Louisiana Supreme Court important and is required by the Supreme Court does not need to with! Username or email address his condition were high and he was placed under nursing. Making detailed discussion and involvement of the College in order to create a.. Be a member of the 0.1-02 % risk of serious consequence was felt to be a member of increased. 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A worsening in her favour in March 2015 in using your username or email address judge considered Montgomery... Supported by a responsible body of doctors very unfortunately, mrs Sidaway became as... Of ‘ material risk as previously described by Lord Scarman in his opposing view to the patient had bilateral emboli. Medical decision making involves a nuanced negotiation of information Scotland were used to what! Medical paternalism entire case training and educational materials must be fit for purpose and their! Bethlem Royal Hospital and others [ 1985 ] 871 AC highlights the importance of.! Educational materials must be fit for purpose making involves a patient that did not ask questions was placed under nursing! Who was responsible for her care during pregnancy and labour doctors should have been warned when.
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