A Revolution In Patients’ Rights

One of the core subjects of litigation concerning professional negligence is that of medical error. Such is the deep-rooted nature of the law’s reach here that a doctor’s liability for negligent injury of their patient easily predates the otherwise seminal establishment of a generalised duty of care in the (in)famous 1932 decision of the House of Lords in Donoghue v Stevenson, stretching right back to the fourteenth century.

Of course much has changed since that early period, both in what we regard as medicine and healthcare, and in the nature of the legal protection that patients can expect to avail themselves of. Traditionally the law has been concerned, naturally, with negligent practice in the sense that a practitioner failed to meet the standards of the reasonable practitioner, behaving in a way that failed to reflect the practice of a responsible body of medical opinion. This standard, enshrined in the so-called Bolam test, has, with only minor variance, stood the test of time since its birth in 1957. In Bolam itself, the unfortunate patient had been subjected to electo-shock therapy without having been restrained. He failed in the subsequent action to recover damages for the injury caused to him by his thrashing around during treatment. The defendant practitioner could demonstrate that a responsible body of medical opinion supported his approach despite that there was just as responsible a body of opinion which would have done otherwise.

Yet all medical negligence is not the same. In some instances the argument will be that the doctor has made a mistake in the treatment but in others the injury to the patient will have resulted not from such a mistake in the treatment itself, indeed in this second category of claims it is key that the procedure has gone smoothly. Rather, the injury results from the development of some risk inherent in the procedure itself that remained despite proper practice. In these cases, the nature of the subsequent claim is that the doctor failed to adequately disclose the possible risks associated with a given procedure thus exposing the patient to the, sadly realised, risk. For much of the twentieth century however, the legal approach to such cases remained the same as in cases like Bolam, which primarily concerned treatment malpractice, rather than disclosure malpractice. The 1985 decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital had confirmed this, with Lord Diplock going so far as to suggest that the question of what risks ought to be disclosed was no different to that of what treatment to undertake and was, as such, a matter for purely clinical judgment, thus governed by the Bolam test. This, predictably, set a high bar for aggrieved patients.

Those days are now over. Following the decision in March 2015 of the UK Supreme Court in Montgomery v Lanarkshire Health Board disclosure malpractice has been fundamentally separated from treatment malpractice, the monolithic nature of Bolam has been challenged and the patient trusted to judge what risks they feel should be disclosed to them given their own personal characteristics and situation. Looking back on the decision in Sidaway it was clear that the Justices of the Supreme Court could no longer justify the pro-practitioner stance that had been adopted there. The patient is now a consumer of healthcare whose decisional autonomy has come to the fore in recent decades. Further, rejecting the logic of Sidaway there is no training that a practitioner can undergo which will allow them to understand which risks a particular patient finds important or which facilities they wish to avoid losing from their lives. Every patient must be met on their own ground. The Supreme Court noted, perhaps wryly, that the medical profession’s own guidance on consent had come to view the doctor-patient relationship as a partnership not a situation where the patient was a passive object of care. This proved, if further evidence were required, that their contemplated change to the law was appropriate.

So, alongside ‘Bolam test’ now stands the ‘Montgomery test’. This holds that all material risks should be disclosed to the patient. A risk will be material where a reasonable person in the position of the patient would attach significance to it, or the doctor is, or should reasonably be aware, that the particular patient would be likely to attach significance to it. There are plenty of questions to be answered in the aftermath of Montgomery but whether, when it comes to disclosure, the patient, or the practitioner is in charge of what happens, is no longer one of them. It is an exciting time indeed to be interested in the professional liability of medical practitioners.

CP McGrath is Co-Editor of the Journal of Professional Negligence which is holding its 2015 Seminar on Vicarious Liability and Non-Delegable Duties on the 25th September 2015.

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