The patient is entitled to decide on the risks to her health which she is willing to run. 44. That panel sent a message to all NGO’s not to have a Law Lord as a patron of your charity as that would compromise your position in important advocacy and litigation matters! cit. L.R. 2. self-defence - defence to assault - reasonable response - proportional - it is a complete defence to an action of assault if … Op. Some court watchers say that if Lord Neuberger (President of the UKSC) and Lady Hale (Deputy President UKSC) sit together on a panel, you are about to witness history in the making! See Montgomery v. Lanarkshire Health Board [2015] UKSC 11, [61]. They refer to treatment offered as being not only dependent on clinical judgment but bureaucratic decisions and resource management, amongst other things. Share it. The Judges also caution against abuse of what they term the therapeutic exception. Subject: Clinical negligence—Consent—Duties of health care professionals to discuss treatment options—Causation of harm to wrong. Montgomery v. Lanarkshire Health Board [2015] UKSC 11, [58]–[59]. Bolam vs Friern Hospital Management Committee [1957] 2 All.E.R.118; Montgomery (Appellant) vs Lanarkshire Health Board (Respondent) (2015), UKSC 11. Examples of medical law statutes are the 19th-century Public Health Acts, Mental Health Acts 1983 and 2007, Mental Capacity Act 2005 and Human Transplantation (Wales) Act 2013. Medicine is a changing field, and the way it is practised is in many ways UK Parliament considers ethical principles when making law on issues such as organ donation and abortion, and in the courts judges frequently consider ethical dilemmas in medicine. The hospital was aware of this throughout her pregnancy. Heather Beckett, John Radford Practising Midwife 2016, 19 … Montgomery v Lanarkshire Health Board. High Court Australia:  Rogers v Whittaker [1992] HCA 58, (1992) 175 CLR 479, United States Court of Appeals, District of Columbia Circuit: Canterbury v. Spence ((18) (1972) 464 F 2d 772), Supreme Court of Canada:  Reibl v. Hughes ((19) (1980) 114 DLR (3d) 1). (i) Introduction 2. Mrs. Montgomery was told that she was having a larger than usual baby. She had an obstructed natural birth in 1999 that resulted in life-changing injuries to her baby and her. ... Montgomery v Lanarkshire Health Board (Respondent) (Scotland). Law regulates many areas of medicine, so doctors should understand the legal framework within which they must work ethically. Montgomery v Lanarkshire Health Board [2015] ... Mrs Montgomery was a diabetic woman, and therefore likely to have a large baby. The fact that a risk is known does not mean there is no negligence if the risk manifests. Contrary to the expectations of those making the plea, it will not negate a claim being made if the standard of performance of the operation is negligent, as judged (at the moment) by Bolam. In analysing post-Sidaway cases, the Judges in Montgomery particularly cite Lord Woolff who, when in the Court of Appeal, held: “… if there is a significant risk which would affect the judgment of the reasonable patient then, in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for himself or herself as to what course he or she should adopt” (in Pearce v United Bristol Health Care NHS Trust [1999] PIQR P 53). The ruling in Montgomery v Lanarkshire Health Board is relatively young; there have been insufficient subsequent cases to truly allow a deep … The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.uk 11 March 2015 PRESS SUMMARY Montgomery (Appellant) v Lanarkshire Health Board (Respondent) [2015] UKSC 11 They go on to make the point that departure from the Bolam test will reduce the predictability of the outcome of litigation. Montgomery v Lanarkshire Health Board Supreme Court 11 March 2015 [2015] UKSC 11. His Honour Judge Collender QC commented that “Montgomery is clearly a decision which demonstrates a new development in the law as it relates to the law on informed consent and strictly the ratio decidendi of the decision is confined to cases involving the adequacy or otherwise of information given to a patient upon which they are to decide whether or not to undergo a particular type of treatment.” 2. self-defence - defence to assault - reasonable response - proportional - it is a complete defence to an action of assault if … 2d 519 [7 Cal. View Montgomery.docx from HEALTHCARE 231 at Universiti Teknologi Mara. The decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board [1] has at long last formally overruled the decision of the House of Lords in Sidaway v The Royal Bethlem Hospital. Aspects of a case that are not vital to the decision are called obiter dicta (statements made in passing) and they usually have little significance in later cases, although they may have some persuasive force. Martin has not been cited in any subsequent case. Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs Montgomery. Policy. However, in a perhaps crucial piece of testimony, the attending advising obstetrician did say at trial that it was her practice not to discuss or advise of the risk of shoulder dystocia because she believed, if she did so, most expectant mothers in the situation of Mrs. Montgomery would opt for caesarean section. [2] However, it has caused some consternation among healthcare The Storm is Coming, Where Can the Greater China Issuers Go? P.N., 31(3), 190-194 43 Montgomery (n3) 58 44 Montgomery (n3) 6 45 E Reid (2015) Montgomery v Lanarkshire Health Board and the rights of the reasonable patient, Edin. Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a landmark decision, in which the UK Supreme Court has found in favour of informed consent on the part of a patient who is considering, or being advised, to undergo medical treatment. The Royal College of Surgeons, acting upon this judgment, has just issued new guidelines on patient consent in October 2016. The judges emphasise the assessment is fact sensitive and also sensitive to the characteristics of the patient. In bringing her claim Mrs. Montgomery lost at both first instance and before the (Scottish) Court of Appeal. V v W 02-Dec-20 FC FDR Appointment to Remain Confidential XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of … Liability then was to be determined by what a responsible body of medical opinion would or would not have advised or warned of (ie, Bolam). 'Montgomery consent': decision of the UK Supreme Court. The hospital was aware of this throughout her pregnancy. There is now a strong ethical perspective permeating medical law. Lanarkshire Health Board, who was responsible for Mrs Montgomery’s care during her pregnancy and labour. The UK Parliaments considers ethical principles when legislating on issues such as organ donation and abortion, and judges frequently consider ethical dilemmas in medicine. Wednesday, 9 November 2016. This alone, if carried through, will have an impact on all members of the medical profession who propose a course of treatment, including those in the employ of the Hospital Authority, and will inevitably mean a longer period of time will have to be spent with individual patients. UK Supreme Court (UKSC) judgment in Montgomery v Lanarkshire Health Board has closed the gap between ‘legal consent’, ‘informed consent’ and the ‘best interest’ of the patients. Montgomery v. Lanarkshire Health Board [2015] UKSC 11, [58]–[59]. Summary: A bench of seven Supreme Court Justices held that whether a particular treatment option ought to have been discussed with a claimant patient was not a … A notable ‘seven-panel’ that had to meet not once, BUT twice, and on the same case, reversing its own judgment in the second sitting (very exceptional!) Montgomery v Lanarkshire Health Board [20151. 11 Wednesday Mar 2015 Ratio decidendi-Wikipedia. Op. 11 Wednesday Mar 2015 45. Indian legal system. Bolam has traditionally been applied in two situations: one, to determine by which the standard of performance of a particular medical procedure be judged; two, the nature and extent as to what, if anything, the patient should be told in respect of a medical procedure that the doctor suggests or proposes be performed, including as to disclosure of risk. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications … Notwithstanding challenges, this test has been the criteria by which all medical negligence actions in England and Wales, essentially the UK and also in Hong Kong, have been judged. Insiders will tell you that a large panel indicates that there is about to be a profound change of law that will not only affect the UK, but also influence many courts in ‘common law’ jurisdictions like Australia, Canada, India, Kenya and even the USA. Indeed it may be that if a risk is known extra care should be taken to avoid that risk. The law for a long time had taken the common law obligations of ‘legal consent’ as the threshold for advising patients rather than the more modern and real-life principles that patients are well informed, health literate and have rights to elect or deny any treatments and be responsible for the consequences of this choice as fully autonomous agents. Claimant always holds the burden of proving likely causation. Had she known and appreciated this risk, she would not have elected to have a natural birth but gone for a Caesarean. There was no obligation to provide patients with unsolicited information about risks if the mention of risks could have a detrimental effect the patient's mind and if it deterred the patient from undergoing the treatment that the doctor believed was in her best interest. UK Supreme Court (UKSC) judgment in Montgomery v Lanarkshire Health Board has closed the gap between ‘legal consent’, ‘informed consent’ and the ‘best interest’ of the patients. Further The ruling in Montgomery v Lanarkshire Health Board is relatively young; there have been insufficient subsequent cases to truly allow a deep … or from it being protected indirectly by the development of new interests. The UKSC, however, allowed the litigant's appeal and ruled that the Bolam Test had no place in the consideration of such cases concerning patient advice and consent in modern times. Contents: (i) Introduction (ii) Background to the decision in Montgomery (iii) What Montgomery decided (iv) The Claimant’s perspective (v) The Defendant’s perspective. 'Montgomery consent': decision of the UK Supreme Court. [2] However, it has caused some consternation among healthcare 46. IAPO is a UK-registered charity (Number 1155577) and a company limited by guarantee (Number 8495711). The first concerned her ante-natal care. The doctor is also relieved in cases of necessity. The obstetrician withheld information on the risks in the mother’s best interests as the mother would have made an irrational choice based on the statistics! Examples of medical law statutes are the 19th-century Public Health Acts, Mental Health Acts 1983 and 2007, Mental Capacity Act 2005 and Human Transplantation (Wales) Act 2013. He also suffered an avulsion of the brachial plexus, rendering his arm useless. They suggest, non-inclusively, factors to be taken into account. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. This case had gone through the entire UK law system, showing persistence and confidence of the litigant and her legal team, and ended up at the doorstep of the UKSC after having exhausted all forums to seek justice. 2. Montgomery v Lanarkshire Health Board concerned a negligent non‐disclose of certain risks involved in natural birth. Montgomery v Lanarkshire Health Board [2015] ... Mrs Montgomery was a diabetic woman, and therefore likely to have a large baby. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. 27 Friday Mar 2015. See Montgomery v. Lanarkshire Health Board [2015] UKSC 11, [61]. P.N., 31(3), 190-194 43 Montgomery (n3) 58 44 Montgomery (n3) 6 45 E Reid (2015) Montgomery v Lanarkshire Health Board and the rights of the reasonable patient, Edin. They expressly disclaim the bombardment of technical information and the routine demand for signature on a consent form as being adequate. Professor Jacques du Plessis (Stellenbosch) Professor Horatia Muir Watt (Paris) Professor Vernon Palmer (Tulane) Professor Tony Prosser (Bristol) Professor Lionel Smith (Montreal) Srikrishna BN. The Royal College of Surgeons Guidelines: Consent expands on this. In the first situation, if a respectable body of medical opinion exists that supports the particular standard of performance or procedure used, a plaintiff bringing a claim will normally not be able to succeed, notwithstanding another body, perhaps of a far larger number of medical practitioners, that is critical of and does not support what was (or was not) undertaken. It is also likely to mean less use of standardised phrases as the particular patient, and his or her requirements and abilities having to be addressed. Sidaway vs Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and others, (1985) AC 871 (House of Lords 1985). cit. Op. There is a 9-10% chance of shoulder dystocia (shoulders being too wide to pass through the pelvis). It is this ratio decidendi which binds lower courts. Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871, 900 (Lord Bridge). He also suffered an avulsion of the brachial plexus, rendering his arm useless. New Judgment: Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11. The baby was later diagnosed with a retinal condition, which severely limited his sight. The Montgomery judgment records the changes in (British) society and that “patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession”. Indian legal system. She also delivered the baby. [2015] UKSC 11; [2015] WLR 768. In 1999, while delivering her baby vaginally, shoulder dystocia occurred. In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court considered that an approach which required the patient to question the doctor disregarded the social and psychological realities of the doctor-patient relationship, whether in the time-pressured setting of … Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Lord … In March, the Supreme Court handed down a unanimous decision in the Montgomery v Lanarkshire Health Board case. There is thus a very clear departure from the traditional determination by the views of the medical profession and a change to the decisions of the particular patient (or, more ominously, the “reasonable person in the patient’s position”). “[r]esponsibility for determining the nature and extent of a person’s rights rest with the courts, not with the medical professions”. Specific reference is made to a legal approach “which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives and living with the consequences of their choices”. Montgomery ruling Informed consent is a fundamental principle of health care: anyone receiving medical treatment must agree to undergo that treatment. For the second situation, a doctor was not liable in negligence so long as what the doctor said or did not say, including as to risk, was in line with a respectable body of medical opinion. Rptr. The court also refers to certain overseas decisions, particularly Reibl v Hughes [1980] 2 SCR 880 in Canada and Rogers v Whitaker (1992) 175 CLR 479 in Australia, where the decisions were rather at odds with the view “doctor knows best”. But an interest in autonomy per se is difficult to … So it was on 22 July 2014; seven Law Lords heard the appeal in the Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015]. The full judgment, the point of law decided and the rationale for the decision (ratio decidendi) of this important  case concerning patient information, advice and consent have just filtered through into clinical practice now in commonwealth law jurisdictions. (i) Introduction 2. As a result of an occlusion of the umbilical cord caused by shoulder dystocia, Sam's brain was starved of oxygen for some 12 minutes. For the mother involved, who had argued that she had not been told of significant risks surrounding her son’s birth, this was the culmination of a 16-year battle for compensation. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Lord … 97, 354 P.2d 625]. The full judgment, the point of law decided and the rationale for the decision (ratio decidendi) of this important case concerning patient information, advice and consent have just filtered … It is recorded in the judgment that it took some 12 minutes between the baby’s head appearing and the effecting of delivery. Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. The thrust of judgments that had subsequently applied Sidaway purported to follow the “middle ground” speech of Lord Bridge, namely that when specifically questioned about risks it is the doctor’s duty to answer truthfully and as fully as the questioner required. Informed Consent : Montgomery v Lanarkshire Health Board. Ratio decidendi-Wikipedia. V v W 02-Dec-20 FC FDR Appointment to Remain Confidential XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of … His Honour Judge Collender QC commented that “Montgomery is clearly a decision which demonstrates a new development in the law as it relates to the law on informed consent and strictly the ratio decidendi of the decision is confined to cases involving the adequacy or otherwise of information given to a patient upon which they are to decide whether or not to undergo a particular type of treatment.” Summary: A bench of seven Supreme Court Justices held that whether a particular treatment option ought to have been discussed with a claimant patient was not a … Secondly, what might be termed patient autonomy, but possibly as judged ultimately by the reasonable man as determined by the courts! The Judges in Montgomery do add caveats. As a result, the baby was deprived of oxygen. Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. There is in effect only one judgment (Lords Kerr and Reed) in which, while expressly disapproving of and overruling Sidaway, the various judgments therein are analysed at some length. Ratio Decidendi (The Reasoning) Medical care is broadly divided into three aspects, namely, (i) diagnosis, (ii) advice, and (iii) treatment. 45. What is clear is that in the UK there is now a full, recent, authoritative, disapproval of the Bolam test as to all cases of advice (as distinct from standard of performance of surgical technique) by the medical profession with it being replaced by consideration of the actual individual patient from the perspective of the patient, rather than the medical profession. 44. 2. We reviewed all court decisions since Montgomery which deal with the case, to establish how this judgment is being interpreted by the courts and the implications of this for risk disclosure in practice. Montgomery is clearly a decision which demonstrates a new development in the law as it relates to the law on informed consent and strictly the ratio decidendi of the decision is confined to cases involving the adequacy or otherwise of information given to a patient upon which they are to decide whether or not to undergo a particular type of treatment. Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871, 882. Rptr. Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs Montgomery. UK Parliament considers ethical principles when making law on issues such as organ donation and abortion, and in the courts judges frequently consider ethical dilemmas in medicine. She was backed in fact and law by the whole of the lower court system that she had legal consent and had satisfied Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital when she gave her advice. The obstetrician, in her evidence, had said that the mother would have, if she had been given all the relevant risk profile and statistics about diabetic mothers and shoulder dystocia, opted out of natural birth and gone for an unnecessary Caesarean section. Srikrishna BN. The Law Society of Hong Kong | Sweet & Maxwell | Westlaw Asia | Contact Us. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. View Montgomery.docx from HEALTHCARE 231 at Universiti Teknologi Mara. 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