Informed consent in clinical negligence claims - has Bolam crept in through the back door?

Informed consent in clinical negligence claims - has Bolam crept in through the back door?

This blog considers those cases and asks whether they reflect the intentions of the Supreme Court in its judgement in Montgomery, or whether Bolam has unwittingly been allowed to creep in through the back door of consent law.

Anthony Gold - Lexology

Since 1957, the issue of whether or not a patient had given informed consent to medical treatment was dealt with as a matter of clinical judgement under the test from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Then came the 2015 decision of Montgomery v Lanarkshire Health Board [2015] UKSC 11. In that case, the Supreme Court considered that the “doctor knows best” type approach of Bolam was, when applied to consent claims, too paternalistic to be the correct law for the 21st century. It was ruled that, when addressing the issue of informed consent, the Bolam test was to be disapplied and the court formulated a new test in its place. In light of that development, clinical negligence practitioners could be forgiven for thinking that the Bolam test no longer has any relevance to consent cases. However, two recent judgements reveal that Bolam is still potentially relevant to the issue of the alternative treatments a doctor should reasonably make their patient aware of as part of the consenting process. This blog considers those cases and asks whether they reflect the intentions of the Supreme Court in its judgement in Montgomery, or whether Bolam has unwittingly been allowed to creep in through the back door of consent law.

Background – the law on consent following Montgomery

The case of Montgomery has been discussed by commentators extensively (for example see my colleague’s blog here) so I will not rehearse its facts. As to its contribution to the law, it reframed the test for consent as follows:

“The doctor is…under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

There are therefore two aspects to the doctor’s duty regarding consent; the first relates to material risks and the second relates to reasonable alternative or variant treatments. With regards to the former, the court in Montgomery set out a test for “materiality” as follows:

“whether, in the circumstances of the particular case, 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.”

The way that the Supreme Court framed this test, giving weight to the concerns of the “particular patient”, was designed to protect patient autonomy and it recognises the subjectivity involved whenever an individual is faced with a decision over whether their body should undergo medical treatment. It is a clear departure from the approach in Bolam in which the information to be provided by doctors about alternative treatments was judged by reference to the practice accepted as proper by a responsible body of medical professionals in the relevant field i.e., as a matter of purely professional clinical judgement.

By contrast, the court left the issue of what is, and what is not, a “reasonable alternative or variant treatment” much more open to interpretation. The court did not attempt to define what was meant by “reasonable” in this context. Based on the approach elsewhere in the judgement it might sensibly be assumed that the Supreme Court intended for the assessment of reasonableness to be just as concerned with the perspective of the individual patient as the assessment of materiality of risk. Indeed, I would submit that the court seems to endorse that approach in the following quote from the judgement (my underlining):

“The relative importance attached by patients to quality as against length of life, or to physical appearance or bodily integrity as against the relief of pain, will vary from one patient to another. Countless other examples could be given of the ways in which the views or circumstances of an individual patient may affect their attitude towards a proposed form of treatment and the reasonable alternatives. The doctor cannot form an objective, “medical” view of these matters, and is therefore not in a position to take the “right” decision as a matter of clinical judgment.”

In spite of the reasoning in Montgomery, in the two cases considered below the courts have followed a Bolam approach in determining what constitutes a reasonable alternative treatment.

McCulloch and Others v Forth Valley Health Board [2021] CSIH 21

This was a fatal claim brought in the Scottish courts by the widow and dependants of the Deceased claimant (“C”).

The case concerned events from 2012. C suffered with symptoms including nausea and chest pain. He was admitted to hospital and underwent three echocardiograms. The Defendant (“D”) was approached for advice regarding the interpretation of the third echocardiogram. Satisfied that it did not show any significant features indicative of immediately life-threatening conditions such as cardiac tamponade, and having met with C to confirm her interpretation, D discharged C. C died the next day as a result of a cardiac arrest caused by cardiac tamponade related to pericarditis and pericardial effusion.

A claim was brought on the basis that D had, amongst other things, failed to prescribe non-steroidal anti-inflammatory drugs (NSAIDs). It was argued that pursuant to Montgomery C should have been made aware of NSAIDs as a reasonable treatment option, that D should have recommended that C take them, and that had C done so his life would have been saved. C failed to persuade the judge on the above points and lost his case both at first instance and on appeal.

With regards to law on alternative treatments from Montgomery, Lady Dorian (the first instance judge) approached this from a medical rather than patient led perspective. She stated:

“…where the doctor has rejected a particular treatment, not by taking on him or herself a decision more properly left to the patient, but upon the basis that it is not a treatment which is indicated in the circumstances of the case, then the duty does not arise”

At appeal, the Court of Session affirmed the approach of Lady Dorian and went further, concluding “The simple fact is that Montgomery has no application in the circumstances of the present case”. The Court of Session therefore found that the question of whether or not a possible alternative treatment option is reasonable should be determined according to the principles in Hunter v Hanley 1955 S.C. 200 (the Scottish version of the Bolam test).

Malik v St George’s University Hospitals NHS Foundation Trust [2021] EWHC 1913 (QB)

Mr Malik (“C”) had a history of spinal problems and leg weakness. Mr Minhas (“D”) advised that C have thoracic decompression surgery on the left-hand side at T10/T11 and a lumbar decompression at L3/L4. This surgery took place in August 2015. There were no criticisms raised about the performance of the surgery, but C was left far worse off than he had been before; he had incomplete paraparesis and was confined to a wheelchair.

C claimed (amongst other things) that he was not informed of the risks of surgery or alternative conservative treatments and that he was unaware of the possibility of surgery making things worse. C claimed that, had he been informed of the risks and viable alternatives, he would have declined surgery. D accepted that he had not offered any non-surgical alternatives. However, he was of the view that such alternatives would only offer temporary or minimal benefits.

C lost his case. The judge assessed the question of whether non-surgical alternatives to surgery were reasonable by reference to the Bolam test, as below:

“Whilst the leading case of Montgomery identifies that there is a duty to take reasonable care to ensure a patient is aware of any reasonable alternative treatments…in the circumstances of this case I consider that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion that the claimant had with Mr Minhas.”

It should be noted that the judge assessed reasonableness in “the context of the parameters and discussion that the claimant had with Mr Minhas.” This suggests that C’s perspective was, to some limited extent, factored into the equation, although ultimately in this case the judge delegated the question of reasonableness to a responsible body of spinal surgeons per Bolam.

Comment

In Montgomery, the Supreme Court commented that laws should reflect the values of the society they govern. With that in mind, the Supreme Court re-engineered the test for consent in an attempt to reflect cotemporary values such as patient autonomy, freedom of choice and the right to bodily integrity. Unfortunately, the Supreme Court left it unclear how the word “reasonable” in the context of “reasonable alternative or variant treatments” was to be understood, and in so doing they left it available for judges to apply the Bolam test on this issue. In so doing, I would argue that they have let in a paternalistic conception of the doctor-patient relationship, that at other parts of their judgement they explicitly wished to show the door.

We may not have to wait too long to see whether the Supreme Court agrees with my characterisation of the decisions in Malik and McCulloch. Permission to appeal the latter was granted on 28 April 2022. That appeal will be heard at the Supreme Court of the United Kingdom and, in as much as it deals with the interpretation of Montgomery, it will apply to Scottish, English & Welsh law. It is therefore awaited with interest.

It is hoped that, at any rate, the Supreme Court will clarify whether reasonable alternative treatments are determined by reference to what an ordinary person would consider reasonable (an objective approach), or what that particular patient would consider reasonable (a subjective approach), or what a responsible body of medical men would consider reasonable (a Bolam approach), or some other yardstick.