3rd April 2015


The recent Supreme Court case of Montgomery against Lanarkshire Health Board has made a fairly momentous decision in the field of patients’ rights when it comes to consenting to medical treatment.

Mrs Montgomery was a small lady who is also diabetic.   When she became pregnant there was a risk that because of her small stature and diabetes a particular complication could arise during childbirth, which would cause the baby to be deprived of oxygen, leading to brain damage.  The best way of avoiding the problem would have been for her to have a caesarean section.  However, she was not advised of the risk since it was the doctor’s view that if she was told about it then every woman in her position would start demanding caesareans, which in the doctor’s opinion would not be in their best interests.  During the childbirth this very complication arose, with the result that the baby was born with brain damage.  Mrs Montgomery understandably sued for compensation, on the basis that she should have been told of the risks, arguing that had she been properly advised she would have opted for a caesarean, so that the brain damage would not have occurred.

In court, the NHS’s argument was that when a doctor was advising a patient about a planned medical treatment, and was obtaining his patient’s consent to it, the question of what risks should be discussed and what the patient should be told should be left very much up to his judgment.  Doctors had to give the advice which a reasonable doctor would be expected to give, and mention the risks which a reasonable doctor would be expected to mention.  Risks which a reasonable doctor would not mention did not have to be explained to the client, and in court actions a claimant could not succeed unless he could establish that no reasonable doctor would have done as his own particular doctor did.  The doctor in this case had been reasonable in not mentioning the risks.  There is little doubt that the NHS were correct in their view of the law as it stood at the outset of the case, even though it made it extremely difficult for patients to win compensation, even when they could show that they had been injured by a particular operation and would not have had that operation if they had been warned of the risks.

However, the matter eventually went to the Supreme Court, which described the law as outdated and paternalistic, placing too much power in the hands of the medical profession, and treating patients with insufficient respect.  Nowadays patients should be treated as adults capable of understanding that medical treatment is uncertain of success and might involve risks, of accepting responsibility for those risks, and accepting the consequences of their choices.

The General Medical Council has for some years now issued guidance to doctors on what in their view is the correct practice for gaining a patient’s consent to treatment.  It is worth repeating the guidance:-

The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side-effects of each option, including the option to have no treatment.  The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.  The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them.  The patient decides whether to accept any of the options and, if so, which one.”

Although this was the GMC’s opinion, it used to be regarded by the courts as an ideal statement of best practice.  Doctors were only liable to pay damages if they breached a basic standard of care below which no doctor should go, which was a considerably lower test.   The Supreme Court disagreed, saying that doctors now have a duty to follow the GMC’s guidance, which is now to be regarded in the courts as the basic standard of care.  Doctors must therefore take reasonable care to ensure that patients know of material risks involved in any recommended treatment, and of reasonable alternatives.  Whether a risk is material will depend on whether this particular patient would consider it to be significant and this will vary from patient to patient.

Accordingly it was quite clear that Mrs Montgomery ought to have been carefully advised of the complications which could have arisen, and it was not appropriate for the doctor to conceal them from her.  If she had been properly advised Mrs Montgomery’s baby would not now be suffering from cerebral palsy, and it is good to know that compensation will be payable.

Richard Godden
Partner – Personal Injury/Dispute Resolution



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