‘Montgomery’ case: the significant role of family physicians

Albert Lee 李大拔

HK Pract 2016;38:108-109

The judgement of the United Kingdom (UK) Supreme Court in ‘Montgomery v Lanarkshire Health Board’¹ has become the hallmark case to interpret the law regarding the duty of doctors on information disclosure to patients regarding risks of a proposed treatment and possible alternatives.² The law now requires a doctor 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.”.³ This has aroused anxiety among the medical profession not only in the UK and other countries with the uncertainty on the amount of information to be discussed with patients. ‘Montgomery’ case has called upon the public to consider ‘material risk or significant risk’.³ The calling of the end to “Bolam” principle would make doctors feel vulnerable. “Bolam” principle states that, “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”.⁴ In para 87 of ‘Montgomery’ stating the current position in relation to risks of injury involved in treatment would adopt ‘Sidaway’⁵, ‘Pearce’⁶, and further refinement by ‘Roger v Whitaker’⁷ that doctors are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved with the recommended treatment and any alternatives available.1 The “prudent patient” standard (what a reasonable patient would want to know to make an informed choice)⁸ rather than professional judgement becomes the yardstick of standard of care.

Is it changing of law or are we changing our professional practice to fit in with the modern context of health care? I have discussed in a recent paper the evolution of standard of care from evidence based medicine, patient-centred approach and holistic care, which fall in line with changes of medical law.⁹

The UK General Medical Council (GMC) has stated that the exchange of information between a doctor and his /her patient is central to good decision-making. How much information to share with patients would vary depending on their individual circumstances.¹⁰ It also advises doctors not to make assumptions on his / her patient’s behalf. However a question arises here, is it ethical to overload patients with lengthy and complex information which would prompt them to pay attention to very remote risks which could result in a refusal to a reasonably safe treatment?¹¹

Doctors must communicate effectively with patients at all times. ‘Patient-centred’ approach, empathy and holistic care are the core skills of family physicians.¹² Empathy is a key component of such a holistic approach to care, and in the clinical context it is described as the ability to communicate an understanding of a patient’s world and to act on that understanding in a therapeutic way.¹³ The family physicians has a very significant role. It would not be feasible to expect clinicians who have only attended the patients for only a short period of time to be able to predict their concerns and worries.¹⁴

Hospital specialists would need to work more closely with the patients’ family physicians for an appropriate level of disclosure of information. For less urgent conditions, the specialists could say to patients after disclosure of clinical information, “I will inform Dr X your family doctor to whom you could discuss further and come back to me if need.”⁹ Choosing an appropriate action for each problem and sharing the understanding of the problems with the patient are key tasks in family practice.¹³

There are exceptions to the duty to disclose including patients’ preference not to know the risks, ‘therapeutic privilege’ (the doctor might reasonably consider that telling the patient something would cause serious harm to the patient’s health) or in circumstances of necessity (when a patient in need of urgent treatment is unconscious or lacks capacity).³ The ‘therapeutic privilege’ should not be taken lightly as GMC has stated that serious harm means more than an upset patient or treatment refusal.¹⁰

Is the new law unnecessarily harsh for doctors? Paper by Sokol reflected his answer to questions by doctors that with the ‘Montgomery’ test, it would still be a matter of judgement by doctors.¹⁶ In today’s health care, responsible body of medical opinion really means judicious use of the current best evidence in making patient care.¹⁷ A strong emphasis on ‘patient-centred’ care is laid down by the Medical Councils of UK and Australia.^18-19 This bridges not only the two different standards (professional v reasonable person) but also legal and medical perspectives regarding disclosure and consent.

Enhancement of ‘patient centred’ care by integrated and co-ordinated care with greater involvement of primary care providers would facilitate the unfolding of a patient’s ‘significant risks’. Rather than being obsessed with the new law, one should look towards ‘patientcentred’ care with comprehensive and whole person care and judicious use of evidence based practice to uphold good clinical practice.

1. UK Supreme Court. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland). [2015] UKSC 1.
2. Lewis C. Editorial: Consent to treatment: Supreme Court discards Bolam principle. Medico-Legal Journal 2015;83(2):59-61.
3. Sokol DK. Update on the UK Law on consent. BMJ 2015;350:h1481.
4. Bolam vs Friern Health Management Committee. [1957] 1 W.L.R. 582 (QB).
5. Sidaway Board of Board of Governors of the Bethlem Hospital and the Maudsley Hospital. [1985] A.C. 871 (HL), 876.
6. Pearce v United Bristol Health Care NHS Trust [1999] P.I.Q.R.
7. Roger v Whitaker [1992] 175 CLR 479 F.C. 92/045.
8. Edozien LC. UK law on consent finally embraces the prudent patient standard. BMJ 2015;350:h287.
9. Lee A. ‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘Patient-Centered Care. Postgraduate Medical Journal 2016; doi:10.1136/postgradmedj-2016-134236.
10. General Medical Council. Consent: Patients and Doctors Making Decisions Together. 2008.
11. Santhanam Sundar. New law on consent will overload seriously ill patients. BMJ 2015;350:h1787.
12. Lee A. Editorial: Core skills in Family Medicine is needed for primary care doctors. Hong Kong Practitioners 2006;28(5):193-195.
13. Mercer SW, Reynolds W. Empathy and quality of care. Br J Gen Pract, 2002;52 (Suppl):S9-S12.
14. Bismark MM, Gogo AJ, Clark RB, et al. Legal disputes over duties to disclose treatment risks to patients: A review of negligence claims and complaints in Australia. PLoS Med 2012; 9(8): e.1001m283 doi: 10.1371/journal.pmed. 1001283.
15. Stoot N, Davis R. The exceptional potential in each primary care consultation. JR Coll Gen Pract 1979;29:201-205.
16. Sokol D. Let’s raise a glass to the ordinary sensible patient. BMJ 2015;351:h3956.
17. Strauss DC, Meirion Thomas J. What Does the Medical Profession Mean by Standard of Care. Journal of Clinical Oncology 2009;Vol.27(32),e192.
18. General Medical Council. Good medical practice: Communication, partnership and teamwork. General Medical Council, London, UK, 2013. Available http://www.gmc-uk.org/guidance/good_medical_practice/communication_ partnership_teamwork.asp Last accessed August 9, 2016.
19. Australian Medical Council. Good medical practice: A code of conduct for doctors in Australia. Available http://www.amc.org.au/index.php/about/goodmedical- practice. Australian Medical Council, 2010. Last accessed August 9, 2016.