Essay Competition runner-up
The Impact of “Montgomery” on Consent
Othman Zuhir is a final year dental student at Leeds Dental Institute
Imagine a patient stepping into your practice with a broken down lower right first molar. In your opinion, this unrestorable tooth warrants an extraction. Upon inspection of the periapical radiograph, it is found that the roots are close to the inferior alveolar nerve. Conducting the extraction with this anatomical feature will risk a damage to the inferior alveolar nerve. Disclosing this information may lead the patient to be reluctant to have the extraction and therefore risks having progressive periapical pathology. On the other hand, concealing this information in order to proceed with the treatment may backfire especially if the patient ends up with nerve damage after the extraction. As clinicians, how are we supposed to approach this situation? In this essay, we will reflect on the case of “Montgomery v Lanarkshire Health Board” to answer the question.
On the 11th of March 2015, the facet of medical law on consent was transformed when the Supreme Court laid out a judgment regarding consent and disclosure in the case of Montgomery v Lanarkshire Health Board (Scotland)  UKSC 11. The litigation against the Lanarkshire Health Board was brought by Nadine Montgomery, a mother who was ill-informed of material risks related to vaginal delivery, following a complicated child birth. The verdict read that patients must be provided with all information that they need, rather than having clinicians dictating the amount of information to be given.
Let us examine the scenario here. Mrs Montgomery is a diabetic lady with a small stature. It is well-understood in the medical field that diabetic patients have higher chances of carrying larger foetuses than normal. In 1999, she gave a natural vaginal birth to her son, Sam. During labour, Sam’s broad shoulder was stuck in her pelvis in a case of shoulder dystocia. The complication caused Sam to be deprived of oxygen for 12 minutes before being successfully manoeuvred. As a consequence, Sam grew up suffering from cerebral palsy. Although concerns were earlier raised by Mrs Montgomery on her ability to deliver naturally, the obstetrician failed to mention the risk of shoulder dystocia and the alternative of having a caesarean delivery. As such, Mrs Montgomery claimed that she was inadequately advised prior to consenting to vaginal birth. The health board, on the other hand, attested that the risk of shoulder dystocia was considerably low at 9-10% risk and that even lower risk of baby suffering of cerebral palsy warranted absolutely no warning. In their view, Mrs Montgomery’s “expression of concern” was different than a direct enquiry requiring a response. In the public’s view however, this is medical paternalism at its best.
It is no secret that paternalism has been the bread and butter of healthcare in the past. By deciding what information to share with patients, clinicians relied on their professional judgment to steer the decision-making process. Many justified this action by claiming beneficence (Lee, 2016; Main and Adair, 2015). It was not until as early as 1914 when patients’ right to make decision was recognised. This was further catalysed by the ever-growing consumerist society in mid-20th century that began to grant mentally-capable patients the right to self-determination (Main and Adair, 2015). Prior to “Montgomery”, matters relating to disclosure were based on “Bolam test”, which was in reference to the court case of Bolam v Friern Hospital Management Committee (1957) 1 WLR 582. “Bolam test” outlines that clinicians’ act must be acceptable to medical opinions at that time. Therefore, the scope of risks disclosure is ought to conform to normal practice of most medical experts. This was the basis of action taken by Mrs Montgomery’s obstetrician.
We now learn that “Montgomery”, however, shifted the paradigm away from “Bolam test” and paternalism. It entails that clinicians must be able to produce a judgment with regards to the amount of information conveyed to the patients, taking into account their need for information. As these judgments are open to scrutiny by courts, clinicians must act according to the current medico-legal provision by providing all the information needed by the patients (Chan et al, 2017). Failure to do so will implicate the clinicians of duty negligence in the case of adverse clinical outcome. (Main and Adair, 2015). In this case, the obstetrician claimed that the risk of shoulder dystocia would have been communicated if Mrs Montgomery asked ‘specifically about exact risks’ (D’Cruz and Kaney, 2015). Such argument is weak and inexcusable as clearly an uninformed patient could not always be expected to ask the right question in order to be sufficiently informed. In case we forget, it is this very reason that patients rely on our expertise to educate them on any risk or complication before making decisions.
To avoid Mrs Montgomery from opting for caesarean section, the obstetrician deliberately concealed the alternative from the discussion as it was believed that caesarean alternative was not in her best interest. As much as we want to exercise our expert opinions to act in the patient’s best interest, it is now unjustifiable for us to withhold specific information. This is because as patients, they are entitled to such information, even if it means we will be disagreeing to their unwise decision made from the given information (Chan et al, 2017). As clinicians, in this matter, we must play the crucial role to facilitate this decision-making process by engaging with patients, addressing any concern raised and offering them with the best advice. If we have their best interest at heart, this is the most appropriate way to act especially in our approach to encourage them to share bigger role in decision-making.
Similarly, we also learnt from “Montgomery” that a low percentage risk of a particular treatment, regardless of how minimal it is, should not be the reason for hiding a material risk. This is especially seen in many cases in dentistry which deals with the success rate of root canal treatment or the potential loss of vitality following a crowning treatment. It is inevitable that longer time will be required to ensure the patients understand all the information given. This will indeed be challenging, if not herculean. Nevertheless, overcoming this difficulty should not mean disregarding the patients’ capacity of understanding or their autonomy in decision-making. In fact, it further corroborates our responsibility in presenting vital information in the most comprehensible and meaningful way (Chan et al, 2017).
The judgment did not resonate well for critics who saw it as a move to seize health professionals of their clinical autonomy and that it contradicted the traditional respect demonstrated by English law towards clinical expertise (Chan et al, 2017; Farrell and Brazier, 2015). Let us evaluate the fact of the case.“Montgomery” does not condone a completely autonomous decision-making process by patients. The notion of subscribing to either autonomy or paternalism in medicine is a false dichotomy. It acknowledges that patients’ rights for autonomy in deciding treatments do not trump other considerations including clinicians’ expertise of diagnosis and care (Farrell and Brazier, 2015), only to highlight the importance of consent and disclosure in a patient-centred setting. On the other hand, some claimed that the decision made little difference to clinicians as the standard of consent and approach similar to “Montgomery” was already specifically prescribed by the both GDC and GMC (Farrell and Brazier, 2015). The perspective of consent advocated by the Supreme Court should have therefore already been running parallel to that of most lawyers and clinicians who were adhering to guidance in relation to consent (Chan et al, 2017).
Looking back to our patient who came into the practice in the first paragraph, it is therefore wise for us to disclose all information to help the patient make an informed decision. This includes advising about the benefits and risks associated with the tooth extraction, as well as the option of leaving it untreated. While the decision will, at the end of the day, be the patient’s prerogative, it is our duty to advise the patient to make the most suitable decision in getting the most desirable outcome.
It has been two years since “Montgomery” decision was delivered. Although the principle behind the verdict is not new, clinicians should still be familiar with this legal case and the implications it has on clinicians who violate the duty of care as prescribed by the current guidelines. This will ensure that cases such as “Montgomery” do not repeat its course in the future. Gone are the days where we solely rely on our expertise to direct the decision-making and consenting process. “Montgomery” echoes the importance of effective communication between clinicians and patients and the ensuing decisions and consents. Never should we, as clinicians, take lightly of the patients’ capacity to make their own decisions especially as we are sharing the responsibility of decision-making in this era void of the shackle of medical paternalism. With our oath to serve the masses, it is our duty to act in their best interest – gaining their informed consent is a major part of them.
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
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Lee, A. 2016. ‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘patient-centred care’.Postgraduate Medical Journal. [Online]. 93(1095), pp.46-50. [Accessed 14 Dec. 2017]. Available from: http://pmj.bmj.com/content/93/1095/46
Main, B. and Adair, S. 2015. The changing face of informed consent. BDJ. [Online].219(7), pp.325-327. [Accessed 14 Dec. 2017]. Available from: https://www.nature.com/articles/sj.bdj.2015.754
Montgomery v Lanarkshire Health Board (Scotland)  UKSC 11