Information overload is unlikely given that information should be tailored to the patient. Ethically, it clarifies the existing shift towards a more cooperative approach in the consultation room. Documentation of this discussion and the options offered is important and is required by the GMC guidance on the same. The ruling does not include any specific ‘percentage cut off’ for a risk as this cannot be relied upon to identify what risks could have such an impact on a reasonable patient’s judgement. These tests ask whether a doctor’s conduct would be supported by a responsible body of clinicians. But doctors must judge what is appropriate for each patient and how their exercise of judgment might be assessed by the courts. Montgomery is, of course, about informed consent: warning of risks, advising of reasonable alternative treatments and obtaining valid consent. Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a 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. Her two-year-old son had been admitted to hospital with croup under the care of two doctors, Dr Rodger and Dr Horn. The jury returned a verdict of "guilty without capital punishment," which carried an automatic sentence of life without parole. This case involves a patient, Bolam, who sustained injuries during a course of electro-convulsive therapy being used as a treatment for depression. The test of materiality defined in the Montgomery ruling was whether “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.”1 The solicitor representing Montgomery spoke of the decision as having “modernised the law on consent and introduced a patient focused test to UK law.”16. Training and educational materials must be fit for purpose. Post navigation. 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. The argument in this appeal was that is not appropriate to use the accepted practice of a body of reasonable medical practitioners when consent is considered. Material risk is a risk that is deemed to be of significance by an individual patient rather than by a body of doctors. The full implications of the case are undoubtedly still unknown, but Montgomery has clear relevance for medical law and ethics. Mrs Montgomery was around five feet tall, and was also diabetic, which often results in a larger foetus. Summary: Justin reviews the issues of consent in clinical negligence cases in, and subsequent to, the case of Montgomery. The Case. The case changed the Bolam testto a greater test in m… Mrs Montgomery has type 1 diabetes, which increases the risk of having 1966). When she was raped, Ellen thought it was the worst thing to ever happen to her. Others have raised questions about the implications for the legal treatment of clinical judgment, suggesting that it represents “a radical move away from English law’s traditional respect for clinical expertise.”9. It was argued by his mother that there had been negligence in his care as, had Dr Horn come to review her son and had he been intubated, then his brain damage and death could have been prevented. Maddox v. Montgomery United State Court of Appeals Eleventh Circuit 718 F. … GMC guidance says that the consenting process is not a snapshot but an ongoing process. Planning for labour emergencies is essential, so that the doctor and patient can discuss the patient’s wishes if an emergency should arise. In Spencer v Hillingdon NHS Trust (April 2015)23 the patient had bilateral pulmonary emboli after a hernia operation. But allocation of health resources should be tackled systematically rather than individually. Sidaway v Board of Governors of the Bethlem Royal Hospital and others [1985] 871 AC. Some doctors feared that more stringent disclosure requirements would risk overwhelming patients with information, causing distress or leading them to make poor decisions, while doctors’ time would be taken up with lengthy explanations, creating a drain on healthcare resources. Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB). The perpetrator, Lisa Marie Montgomery, then aged 36, … Lanarkshire Health Board was found liable in negligence as Mrs. Montgomery was not 16. Written and curated by real attorneys at Quimbee. Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430. Justices. http://creativecommons.org/licenses/by-nc/4.0/, http://www.bmj.com/content/350/bmj.h1481/rr-23, Brighton and Sussex University Hospitals NHS Trust: Consultant in Stroke Medicine, Practice Plus Group: General Practitioner, Rush Hill & Weston Surgeries: Salaried GP, Herefordshire and Worcestershire Health and Care NHS Trust: Consultant Psychiatry, Women’s, children’s & adolescents’ health. Montgomery sought damages against Dr McLellan who was responsible for her care during pregnancy and labour. In making their ruling, the different Lords had differing opinions of the case and what the duty of a doctor was in terms of discussion and consent. In 1999, Nadine Montgomery gave birth by vaginal delivery to Sam. The risk for such surgery was held to be less than one per cent and Mrs Sidaway felt her surgeon had been negligent not to include this risk in the discussion. When the new pain developed, her surgeon suggested that a cervical cord decompression would alleviate her symptoms. In keeping with general practice Dr McLellan would customarily offer a caesarean section to diabetic mothers where the estimated birth weight is 4.5 kilograms. As the risk of serious consequence was felt to be so small, it was not discussed. The Montgomery v Lanarkshire case of March 20151 drew fresh attention to informed consent. RCOG has proposed pilot programmes to identify what resources women, clinicians, and health services need to comply with the Montgomery ruling. He began to worsen and Dr Horn was called but did not attend. Doctors may have been treating patients as they understood the law to be, as in the Sidaway case, but the Supreme Court has told us that this was wrong3 and that anyone who practised according to Sidaway was also wrong. Georgiev v Kings College Hospital NHS Foundation Trust [2016] EWHC 104 (QB). The consultant stated that the risk of shoulder dystocia occurring in a woman with diabetes was 10% but that the risk of a serious consequence from said shoulder dystocia was 0.2% for a brachial plexus injury and less than 0.1% for hypoxic injury. Jones v Royal Wolverhampton NHS Trust [2015] EWHC 2154 (QB). In November 1963, more than a half century ago, Mr. Montgomery, then a 17-year-old eleventh-grade student, was arrested for the murder of a sheriff’s deputy in East Baton Rouge, Louisiana. We have heard anecdotally that some hospitals are in the process of updating their procedures on informed consent, but few have completed this. ECT without the prior administration of a muscle relaxant results in muscle spasms and this has a known, although small, risk of bone fracture as a result. Having difficulty registering or logging in? Login -- Download Leichhardt Municipal Council -v- Montgomery [2007] HCA 6 as PDF--Save this case. 1992. professor of maternal and fetal health and director of Tommy’s Centre for Maternal and Fetal Health. University of Edinburgh. So the Montgomery principles have been known—or should have been known—by doctors for many years. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in hypoxic insult with consequent cerebral palsy. The case of Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878 (QB) (25 November 2016), whilst not wholly on point, demonstrates how post-Montgomery the court may apply the “subjective” element of Montgomery to determine a case, in this instance concluding that the claimant did not find it easy to express himself and was intimidated such that it was the hospital’s responsibility to … Patients are not always aware of the facts of their treatment after consent related discussions,26 and they are influenced by the way in which information is presented (the “framing effect”).27 But the difficulties of conveying information about treatment and risks should not be taken to indicate that patients are incapable of understanding medical information or that patient autonomy in decision making is meaningless. The Lord Justices found that, in this case, her surgeon had not been negligent in not informing her of the risk of paraplegia. With regards to the disclosure of the risk of fracture, it was the doctor’s practice not to discuss the risk unless directly asked, in which case he would say the risk was very slight. Montgomery was retried. State v. Montgomery, 181 So. Lords Bridge and Templeman applied the Bolam test with the addition that if there were risks that were so obviously frequent or serious, a doctor would be negligent not to mention them, no matter what the accepted practice was amongst the medical profession. The Lords felt that you could only accept a body of medical opinion if the action they supported was felt to be a logical one. To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The Montgomery v Lanarkshire case of March 2015 1 drew fresh attention to informed consent. You can also use your College Personal ID (PID) if you have one. This case was brought by the mother of Patrick Bolitho, a young boy who died following a cardiac arrest in hospital that resulted in severe brain damage. It is in fact Lord Scarman that introduced the concept of ‘material risk’, 30 years before the Montgomery ruling. You can also use your College Personal ID (PID) if you have one. You do not need to be a member of the College in order to create a login. The doctor’s normal practice was to give ECT without a relaxant and without any physical restraints; the doctor would support the patient’s chin and shoulders while nurses stood at either side of the treatment couch to prevent the patient falling. Some clinicians said that retrospective application of the judgment could “open the floodgates” for claims in relation to doctors’ past actions.10 Others thought that the Montgomery ruling was unlikely to have this effect, however “excited the claimant law firms might become initially.”11 Legal opinions were reserved, describing the ruling as “the belated obituary, not the death knell, of medical paternalism.”12 Some argued that the standard imposed by the Montgomery decision merely reflected good practice as already specified by the GMC13 and would make little practical difference to clinicians.8 Nevertheless, the concern generated by the ruling might affect doctors’ behaviour and other potential cases. Directed by Boris Sagal. Previously, the Bolam test14 in England and the Hunter v Hanley test15 in Scotland were used to determine what should be disclosed. Concerns for his condition were high and he was placed under specialist nursing care. The Montgomery case in 2015 was a landmark for informed consent in the UK. In reality, medical decision making involves a nuanced negotiation of information. When the disclosure of the risk of injury was considered, the court took the view that in failing to warn of the ‘very slight’ risk, negligence would only be shown if Bolam could prove both that no other reasonable doctors would not have warned of the risk and that if he had been warned he would not have given consent to undergo the ECT. In Mrs A v East Kent Hospitals University NHS Foundation Trust (April 2015),25 the claimant’s baby, who was conceived using intracytoplasmic sperm injection, had a chromosomal abnormality. Guidance in effect at that time from the GMC,17 BMA,18 NHS, and the Scottish Office19 supported a doctor’s duty to disclose relevant information and risks. This question is for testing whether or not you are a human visitor and to prevent automated spam submissions. Mr Afshar advised surgery on the protruding disc. Constitutionally, the Supreme Court cannot make new law; it can only state what, in theory, the law has always been. ... We encourage you to double check our case summaries by reading the entire case. Mrs Sidaway alleged that, in the discussion of the decompression, she was not warned of the risk of paraplegia as a complication of the procedure. The concept of the therapeutic exception is also mentioned as a rare occurrence when a doctor may feel that discussion of risks will result in harm or detriment to the patient’s health and wellbeing. This would have meant that she would have had her surgery at a later date rather than choosing not to have it at all. This case was heard at the UK Supreme Court in July 2014 before seven Justices following failed appeals in the Court of Session and the Inner House. A patient is autonomous and should be supported to make decisions about their own health and to take ownership of the fact that sometimes success is uncertain and complications can occur despite the best treatment. The involvement of seven justices in this final appeal is of particular importance as this is the number of justices required to change or overrule a previous House of Lords ruling; in this case, the ruling in Sidaway. She expressed general concerns throughout her antenatal care. Forgotten your username or password? This is an Open Access article distributed in accordance with the Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, which permits others to distribute, remix, adapt, build upon this work non-commercially, and license their derivative works on different terms, provided the original work is properly cited and the use is non-commercial. In 2012, the Supreme Court decided Miller v. Alabama, which held that a mandatory life-without-parole sentence for a juvenile violates the Eighth Amendment. What was sufficient information to make a balanced decision could only be decided by the patient, not their doctor, and it should be presented along with information on reasonable alternative options. In these cases it is reasonable to not discuss risks but these circumstances are, as already said, rare. He felt that the practice of gaining consent should be viewed differently from that of the skill of diagnosis or carrying out a treatment where the body of medical opinion does hold weight. 817 F.3d 12 (1st Cir. The advice from the consultant, following an examination and discussion of the risks of induction and Caesarean, was that Mrs Pearce should await the natural onset of labour. They held that a patient cannot make a fully informed and proper decision if they have not been presented with all the facts that could influence that process. But doctors should have already been following GMC guidance, which highlights the importance of communication.13. Many doctors have questioned the implications that the recent Supreme Court judgement of Montgomery – v Lanarkshire Health Board1 will have for the way they obtain consent from patients. The case was made that as the consultant had not discussed the risk of shoulder dystocia, the potential significant consequences of it occurring and the alternative option of a Caesarean section that negligence had occurred as far as consent is considered; Mrs Montgomery was not able to make a fully informed decision without full information on all the options. Rather it shows that the communication process has a strong influence on how patients understand, remember, and evaluate information—all of which are essential to informed consent. Miss Chester had the spinal surgery and suffered a worsening in her symptoms. He also added that if a patient asked a question then it should be answered. It was felt that if she had proceeded with the surgery at a different time then it may have been successful. The case was brought by Henry Montgomery, a Louisiana inmate who challenged his sentence for the killing of an East Baton Rouge sheriff’s deputy in 1963, when Montgomery … Clark v Greater Glasgow Health Board [2016] CSOH 25. It should be viewed differently from the process of diagnosis or treatment. The discussion and involvement of the patient in the planning of their care mirrors the approach of shared decision making. Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana. The court rejected this, holding that the Montgomery ruling did not create a right to informed consent as an independent cause of action, but simply set a new legal standard for the duty to disclose. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in … . He appealed to the Louisiana Supreme Court, and his conviction was overturned because of community prejudice. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The law on consent has progressed from doctor focused to patient focused. Despite expressing concern to her consultant about whether she would be able to deliver her baby vagi… 59 results for maddox v montgomery case brief. The Patient’s Charter: What Users Think. Obstetricians urgently need guidance. Two years after the Supreme Court’s decision, we examine the effects of the Montgomery ruling on clinical and medicolegal practice. All seven of the Justices supported the appeal. Montgomery was 17 years old at the time of the crime. We (ESC) have noticed that a considerable proportion of cases of obstetric negligence raised since Montgomery involve consent in addition to standard complaints of substandard care. All authors approved the submission of the manuscript. He also suffered an avulsion of the brachial plexus, rendering his arm useless. He did not seek treatment immediately because he had not been advised of the risk of deep vein thrombosis or pulmonary embolism or of symptoms that might indicate these. Montgomery a caesarean section. In this case, a Lanarkshire woman (Mrs Nadine Montgomery) whose baby suffered brain damage during birth was awarded £5.25m compensation. It is understood that an application to appeal to the Supreme Court is being presented and if allowed, some of the issues raised in this article may be further discussed. The Bolam test was affirmed in Sidaway v Bethlem Royal Hospital Governors and others,2 although the ruling was not unanimous, with judges placing different weight on the patient’s right to make informed treatment decisions versus the doctor’s professional judgment in disclosing information. Mrs Montgomery is diabetic and small in stature and the risk of shoulder dystocia was agreed to be 9-10%. Nadine Montgomery has won a 16-year legal fight for damages for her son Sam A Lanarkshire woman whose baby suffered brain damage during birth has won a 16-year fight for £5.25m compensation. Patrick deteriorated and suffered a cardiac arrest from which he was resuscitated but he had sustained significant brain damage. He died seven years later. Montgomery and informed consent: where are we now? 2d 756, 762 (La. A further challenge is that the risks of birth can change dramatically and quickly, making detailed discussion and informed decision making difficult. His opinions in this case are referred to in the Montgomery ruling. Mrs A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 (QB). A patient, Miss Chester, was under the care of a neurosurgeon, Mr Afshar, for a 6-year history of back pain and she had been shown to have a vertebral disc protrusion on an MRI scan. For some, Montgomery represents a defining moment in medical law … If the action of a doctor was found to be an illogical course of action then they could be found to be negligent despite having a group of doctors who would have acted in the same way. The court found that a doctor’s actions are not necessarily negligent if they are found to conform to a practice that is accepted as reasonable and proper by other reasonable members of the profession. The judge considered the Montgomery ruling and found that failure to inform the patient was a breach of the duty of care. The Montgomery case was framed as a clash of values—patient autonomy versus medical paternalism. In his appeal to the House of Lords, Mr Afshar focused on the grounds of causation as Miss Chester was likely to have consented for the operation and that the operation would have carried the same risk, even if it had been performed at a later date. The Montgomery test was defined in the case 1of Montgomery v Lanarkshire Health Board. Today’s patients can expect a more active and informed role in treatment decisions, with a corresponding shift in emphasis on various values, including autonomy, in medical ethics. Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section. What was worse was the treatment by the hospital staff, police and the court system when she reported it, and the afttermath of the culprit's apprehension. Although the Medical Defence Union and the Medical Protection Society have each issued statements and updated their guidance, as have some royal colleges (such as the Royal College of Surgeons), other bodies such as the GMC and the Royal College of Obstetricians and Gynaecologists (RCOG) have yet to do so. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach a significance to the risk. Finally, doctors criticised the focus of patient autonomy over medical paternalism. As seen in clinical practice, it was acknowledged that some patients will express a wish to not be told of the risks of a treatment or procedure or to not make a decision. In conclusion, it is important to remember that this ruling involves both the exploration and discussion of risks and options, not just risks alone. See: The appellant, Nadine Montgomery, gave birth on 1 October 1999 and, as a result of complications during delivery, her son was born with cerebral palsy. The court applied the Montgomery test and decided that the risk was not material, because neither a reasonable patient nor the patient herself would have attached significance to it. All other authors have nothing to declare. It was felt that, despite not being told of the risk of paraplegia, Mrs Sidaway had been given sufficient information to enable her to make a decision about proceeding with the treatment. This would have meant that although failing to see Patrick represented a breach in her duty of care, it was not a breach that resulted in his eventual death. He finally appealed to the House of Lords. The Montgomery ruling has not radically changed the process of consent; it has simply given appropriate recognition to patients as decision makers. She has type 1 diabetes and was concerned during her pregnancy that the size of her baby might lead to difficulties with a vaginal delivery. In his ruling, Lord Hope stated: The injury was intimately involved with the duty to warn. Bobbie Jo Stinnett was a pregnant 23-year-old American woman found murdered in her home in Skidmore, Missouri. With Elizabeth Montgomery, William Daniels, Cliff Potts, Rosemary Murphy. On 2nd December her daughter was found to have died in utero. Neutral citation number [2015] UKSC 11. Even if the risk be material, the doctor will not be liable if upon a reasonable assessment of his patient’s condition he takes the view that a warning would be detrimental to his patient’s health. -V- Montgomery [ 2007 ] HCA 6 as PDF -- Save this case on which... Ect without the use of a muscle relaxant or physical restraints s over her due date on November... Was negligent in failing to advise of this risk but he did not attend back 1999! 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