Walsh, Bridie --- "Montgomery v Lanarkshire Health Board: 'Cause' for a new approach to doctor-patient relationships" [2022] PrecedentAULA 3; (2022) 168 Precedent 4

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MONTGOMERY V LANARKSHIRE HEALTH BOARD

‘CAUSE’ FOR A NEW APPROACH TO DOCTOR–PATIENT RELATIONSHIPS

By Bridie Walsh

‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo’.^[1]

This article provides a summary of the watershed UK case Montgomery v Lanarkshire Health Board^[2] (Montgomery) against the previously held position of Bolam v Friern Hospital Management Committee^[3] (Bolam) and affirmed in Sidaway v Board of Governors of the Bethlem Royal Hospital (Sidaway).^[4] It then examines the current situation in Australia in relation to consent and causation.

This article is intended not to provide a full analysis of all consent-related case law in this area, but rather to discretely analyse Montgomery as a breakaway from Bolam and to outline the current position in Australia in relation to causation as a way of examining how UK law may develop in the post-Montgomery era. While Montgomery advocated a broad test for causation, the position in Australia has developed to protect medical practitioners against situations where the disclosure is not necessarily causally linked to the outcome. The approach in Montgomery suggests a reluctance to narrow the scope, although it is likely that this issue will be enlivened in case law in the future. This remains relevant to Australia, in terms of whether the UK will follow the Australian approach, or whether Australia may soften the strictness of the current doctrine of causation.

Montgomery was a turning point in medical negligence law in the UK; it was significant for the importance it attached to patient autonomy regarding standard of care in medical negligence cases of consent. The UK Supreme Court followed international jurisdictions, notably Australia in the case of Rogers v Whitaker^[5] (Rogers), by making informed consent patient centric rather than doctor centric. Simply put, the decision in Montgomery held that a patient should be given information as to the treatment they are undertaking and the associated risks and possible alternatives. The Montgomery decision overturned the test set out in Bolam, which asserted that treatment and disclosure of risk should be based on peer opinion.^[6]

Prima facie this development was significant in UK law as it set in stone what was an (arguably) already existing burden on doctors to engage in meaningful discussions of risk with patients. In Australia, however, while the autonomy of the patient has been paramount for some time, the law has since limited the ability of plaintiffs to bring a claim for damages by narrowing the scope of causation.^[7] In Australia the courts will ask, ‘but for the failure to warn would the plaintiff have reasonably taken a different approach?’ This is a two-limbed test:

• factual causation; and

• normative causation (or scope of liability).

This is explained below.

Despite the development in Rogers in Australia in 1992, any clarification as to causation (whether the patient would still have had the same treatment had they been informed of the risks) was intentionally avoided in Montgomery.

THE PRE-MONTGOMERY POSITION

Prior to Montgomery, the 1957 case of Bolam formed the cornerstone of all medical practitioner defence in the UK, centring as it did on the question ‘what would a “reasonable practitioner” do?’ This position was thereafter affirmed broadly, but most notably in the case of Sidaway.^[8] In breaking from Bolam and Sidaway, Montgomery drew inspiration (as well as dicta) from the Australian case of Rogers.

Bolam

While undergoing electroconvulsive treatment administered to him at the defendant’s psychiatric institution, Friern Hospital, the plaintiff, a voluntary patient, sustained bilateral fractures of the acetabula. He brought the claim against the hospital.^[9]

The jury in Bolam found in favour of the Hospital, which argued that general medical opinions supported the treatment provided.^[10] Justice McNair stated that the treatment need not be perfect, so long as it was ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’^[11]

In sum, the Bolam test stipulates:

• that a reasonable standard of care should be based on a majority of reasonable peer opinion; and

• that the disclosure of any risk in any procedure should likewise follow reasonable peer opinion.^[12]

This test stood as the prevailing authority for over 50 years.

Sidaway

Sidaway^[13] affirmed the Bolam decision. Mrs Sidaway suffered from a neck injury: her ‘second and third cervical vertebrae were congenitally fused and ... there was a significant narrowing of the spinal column between the fifth and sixth vertebrae.’^[14] Her neurosurgeon obtained consent for a cervical cord decompression but did not inform her that in the worst 1–2 per cent of cases decompression can cause paraplegia.^[15] Subsequently she did develop paraplegia.^[16]

The Court held that obtaining consent does not require an elaborate explanation of remote side effects.^[17] The House of Lords decided that it was largely a matter for doctors to decide how much to tell patients about the risks of treatment.^[18] Lord Diplock stated: ‘[W]e are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient’s physical or mental condition worse rather than better.’^[19] Therefore a doctor could not be sued for a failure to inform of a risk where other reasonable doctors would similarly not have informed of that risk.^[20]

Rogers v Whitaker

In stark contrast to Bolam and Sidaway, the 1992 Australian case of Rogers^[21] endorsed the autonomy of the patient in questions of treatment.

Mrs Whitaker had been nearly blind in her right eye since the age of nine. She was advised by Dr Rogers that he could operate on her right eye to remove scar tissue to improve her appearance and sight. Dr Rogers did not inform Mrs Whitaker of the small (1 in 14,000) risk of developing inflammation and sympathetic ophthalmia in her left eye that could lead to complete loss of eyesight in that eye. Following the surgery, the risk to Mrs Whitaker’s left eye eventuated and the sight in her right eye remained the same. Mrs Whitaker was thus rendered almost completely blind.^[22] In making its determination, the High Court of Australia (HCA) broke away from the Bolam test.

The Court held that it was important whether a risk was material, the definition of this materiality being that to which a reasonable person in the patient’s position would attach significance.^[23] The test in respect of the materiality of that risk was later narrowed in relation to causation, as will be discussed later in this article.

MONTGOMERY

Mrs Montgomery was noted in the judgment to be ‘clearly highly intelligent’. She suffered from diabetes mellitus and was ‘of small stature, being just over five feet in height.’ In 1999 Mrs Montgomery was expecting her first baby.^[24]

The judgment established that ‘women suffering from diabetes are likely to have babies that are larger than normal, and there can be a particular concentration of weight on the babies’ shoulders.’^[25] Due to the increased risk of a larger child, diabetes brings with it an increased risk (approximately 9–10 per cent) of shoulder dystocia during vaginal delivery.^[26] Shoulder dystocia is a condition wherein a baby has such wide shoulders that it may be unable to pass through the mother’s pelvis without medical intervention. Mrs Montgomery was not warned of these risks, although she did express concern about her child’s size.^[27]

While Mrs Montgomery was delivering her baby vaginally, it suffered shoulder dystocia. In consequence the baby was deprived of oxygen and suffered a brachial plexus injury, resulting in Erb’s palsy, and all four limbs were affected by cerebral palsy caused by the deprivation of oxygen.^[28]

Mrs Montgomery alleged two grounds of fault:

• that she ought to have been given information and advice about the risks of shoulder dystocia; and

• that the doctor should have performed a caesarean section in response to abnormalities shown on radiology.^[29]

The decision

Mrs Montgomery was unsuccessful in the lower courts and appealed to the UK Supreme Court on the first ground of fault: that she ought to have been given advice about the risks of shoulder dystocia.^[30]

After an exhaustive review of the case law, the UK Supreme Court overturned the Bolam test. Mrs Montgomery successfully argued that she should have been warned of the risks of shoulder dystocia and notified of the alternative treatments available, including caesarean section.^[31]

The Montgomery decision in sum stood for the position that:

• an adult person (of sound mind) is entitled to decide which, if any, treatment to undergo;

• the treating doctor has a duty to ensure the patient is aware of any material risks and of alternative or variant treatments; and

• the test of this material risk is whether a reasonable person would attach significance to this factor.^[32]

The UK Supreme Court drew on the HCA decision of Rogers,^[33] holding that whether or not a risk is material is based on whether ‘a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it’.^[34]

The Court clarified that:

‘A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter.’^[35]

Exceptions

The decision in Montgomery has a significant caveat: the ‘therapeutic exception’,^[36] where a doctor may withhold information from the patient if it is reasonably believed ‘that its disclosure would be seriously detrimental to the patient’s health.’^[37] The Court in Montgomery, however, stressed that this exception should be limited in application.^[38]

The doctor is also excused from obtaining consent in cases of necessity, for example, where the patient is unconscious, or treatment is required urgently.^[39]

MATERIALITY OF RISK: CAUSATION IN AUSTRALIA AND THE UK

The judges in Montgomery made a conscious effort to avoid a decision as to the materiality of risk.^[40] The Australian position regarding materiality of risk has been clarified in case law and statute post-Rogers.

Causation in Montgomery

Although the Court determined that the failure to inform Mrs Montgomery of the risks led to her injury (that is, she would have undergone a different treatment had she been aware), it stopped short of asserting that a causal link between the negligence and the outcome need be proven. The Court stated: ‘[i]t is unnecessary in these circumstances to consider whether, if Mrs Montgomery could not establish “but for” causation, she might nevertheless establish causation on some other basis’.^[41]

In making this determination, the Court relied on the opinion set out in Chester v Afshar (Chester):^[42] because the plaintiff’s risk of developing cauda equina occurred and she had not been warned of this risk, the plaintiff should succeed. The Court in Chester asked the question: ‘Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?’^[43] The majority in Chester found in favour of the plaintiff as the outcome came from a failure to warn of the risk, irrespective of whether the outcome would be any different had the risk been disclosed.^[44]

Causation in Australia

The broad approach endorsed in Montgomery, and in the preceding case of Chester, has been narrowed considerably in Australian law.

In the 2001 HCA case of Rosenberg v Percival (Rosenberg),^[45] Callinan J noted that Rogers advocated for both an objective and a subjective test of causation. His Honour compared the facts of Rosenberg to that of Rogers, noting that, in the case of Rogers, it was held that because ‘the patient is already blind in one eye and stands to lose her sight entirely, that risk becomes one of an altogether greater magnitude.’^[46] In the case of Rosenberg, it was determined that the patient would have undergone the osteotomy regardless of the risks asserted, and causation (showing that, but for the negligence, she would have had a different outcome) was therefore not established.^[47] This is a stark difference to the UK approach in Chester.

The 2002 Review of the Law of Negligence (Ipp Report), relying on Rosenberg, set out two key elements of causation:

• ‘factual causation’, being whether the negligence factually played a role in the harm; and

• ‘“scope of liability” which concerns the normative issue of the appropriate scope of the negligent person’s liability for the harm.’^[48]

The 2013 case of Wallace v Kam (Wallace)^[49] was useful in articulating the normative limb of the test. The plaintiff sought assistance from a neurosurgeon in relation to a condition of his lumbar spine which carried risks of neurapraxia and paralysis.^[50] It was established that, were the plaintiff warned of the risk of paralysis, he would not have undergone the surgery, but, critically, had he known of the possibility of neurapraxia (which he suffered) he would still have undergone the treatment.^[51] Ultimately the position was held that a claim can only succeed if a patient has not been advised of a risk and would not have undergone the particular treatment had they been advised of that risk, and where they did undergo that treatment the particular risk materialised.^[52] The argument that he would not have had the treatment had he known of the risk of paralysis, but would have undergone it had he known of neurapraxia (which he did suffer), therefore did not satisfy the normative limb of the test.

The causation elements set out by the Ipp Report have also been implemented into civil liability statute in all Australian states and the ACT.^[53] It is therefore important to note that there is not a common position across Australia in each jurisdiction.

Where to from here?

Whether causation in future cases post-Montgomery will be narrowed (by limiting the scope of the materiality of risk) remains to be seen and – given the approach by the UK courts in following the Australian law – it is likely that the broad approach currently in place will develop along the same direction as that in Australia. This fact notwithstanding, reading broadly the dicta from both Chester and Montgomery, there appears to be a real and concerted effort to protect the notion of autonomy of the plaintiff, suggesting that the UK will perhaps be reticent about making such strong developments, as has been seen in Australia. As noted by Lord Walker (agreeing with the majority but commenting himself) in Chester:

‘There would be a danger ... of an honest claimant finding herself without a remedy in circumstances where the surgeon has failed in his professional duty, and the claimant has suffered injury directly within the scope and focus of that duty ... such a claimant ought not to be without a remedy, even if it involves some extension of existing principle ... Otherwise the surgeon’s important duty would in many cases be drained of its content.’^[54]

CONCLUSION

Montgomery represents a significant shift away from previous paternalistic notions of the doctor–patient relationship towards the ideal of a partnership between the parties. While this legal doctrine will no doubt develop over the coming years, Montgomery reflected a significant legal shift in the UK towards protecting and advancing the autonomy of the patient. Montgomery was also reflective of the changing landscape that has been evident in Australia since the 1992 decision in Rogers.

Despite this significant development, it remains to be seen how causation, as described in the previous section, will be addressed in the UK context. While it is likely that the UK will follow the Australian approach by narrowing the scope of causation per Wallace, as discussed, there remains a focus on patient autonomy by advocating a broader definition of causation per the opinion set out in Chester. Nonetheless, Montgomery is reflective of a new approach to medical negligence in the UK that will no doubt have ongoing and significant effects on the law into the future. The Australian approach, in contrast, shows a willingness to protect the legal doctrine of ‘causation’ which, it is thought, is likely to be imported into the UK law in the future.

Bridie Walsh is an Associate at Slater & Gordon Lawyers, practising in medical negligence litigation. She was listed as one of the top ten rising star lawyers in 2018 by the Law Institute of Victoria, and was a finalist in the Lawyers Weekly 30 under 30 awards in 2019. EMAIL [e-mail].

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^[1] Montgomery v Lanarkshire Health Board [2015] UKSC 11 (Montgomery) [87].

^[2] Montgomery, above note 1.

^[3] [1957] 1 WLR 582.

^[4] [1985] UKHL 1; [1985] AC 871.

^[5] [1992] HCA 58 (Rogers).

^[6] Bolam, above note 3.

^[7] For example, in the case of Rosenberg v Percival [2001] HCA 18 (Rosenberg).

^[8] Sidaway, above note 4.

^[9] Bolam, above note 3.

^[10] Ibid, 594.

^[11] Ibid, 587.

^[12] Ibid, 582–3.

^[13] Sidaway, above note 4.

^[14] [1985] UKHL 1; [1985] AC 871, 2.

^[15] Ibid, 3.

^[16] Ibid, 15.

^[17] Ibid.

^[18] Ibid, 29.

^[19] Ibid, 19.

^[20] Ibid.

^[21] Rogers, above note 5.

^[22] Ibid.

^[23] Ibid, [16].

^[24] Montgomery, above note 1, [6]–[7].

^[25] Ibid, [7].

^[26] Ibid, [8].

^[27] Ibid, [17].

^[28] Ibid, [22].

^[29] Ibid, [2].

^[30] Ibid, [4].

^[31] Ibid, [94].

^[32] Ibid, [87].

^[33] Rogers, above note 5.

^[34] Montgomery, above note 1, [72].

^[35] Ibid, [85].

^[36] Ibid.

^[37] Ibid, [88].

^[38] Ibid, [91].

^[39] Ibid, [88].

^[40] Ibid, [105].

^[41] Ibid.

^[42] [2004] UKHL 41 (Chester).

^[43] Ibid, [1].

^[44] Ibid, [87].

^[45] Rosenberg, above note 7.

^[46] Ibid, [77].

^[47] Ibid, [223].

^[48] Commonwealth of Australia, Review of the Law of Negligence, Final Report (Ipp Report, September 2002) Recommendation 29(b).

^[49] [2013] HCA 19.

^[50] Ibid, [1].

^[51] Ibid, [19].

^[52] Ibid, [40].

^[53] For example, the Civil Liability Act 2002 (NSW), s5D(3); Civil Liability Act 2003 (Qld), s11(3)(b); Civil Liability Act 2002 (Tas), s13(3)(b); Civil Liability Act 2002 (WA), s5C(3)(b).

^[54] Chester, above note 42, [101].