Between the Reasonable and the Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to Medical Treatment

Health Care Analysis https://doi.org/10.1007/s10728-018-0358-x ORIGINAL ARTICLE Between the Reasonable and the Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to Medical Treatment Michael Dunn1 · K. W. M. Fulford2 · Jonathan Herring3 · Ashok Handa4 © The Author(s) 2018 Abstract The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now (rightfully) accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically (and legally) obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and wellbeing. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally. Keywords Informed consent · Shared decision making · Patient autonomy · Reasonable person · Medical law * Michael Dunn Extended author information available on the last page of the article 13 Vol.:(0123456789) Health Care Analysis Introduction: Montgomery and the New Test of Materiality for Risk Disclosure Montgomery v Lanarkshire Health Board [26] (from this point on: Montgomery) is a recent UK Supreme Court judgment that overturned the 1985 House of Lords decision in Sidaway [42] to govern the practice of informed consent by applying the well-established Bolam [2] professional standard of non-negligent care. Briefly, the facts of the Montgomery case were as follows: Mrs. Montgomery suffers from diabetes and is of short stature. Shoulder dystocia arose as a complication during the vaginal delivery of her baby, leading to the occlusion of the umbilical cord and causing the baby to suffer from a brachial plexus injury that required life-long, intensive medical care and treatment. Mrs. Montgomery sought damages in negligence on the grounds that she ought to have been provided with information about the risk of shoulder dystocia (a risk estimated at 9–10%, given Mrs. Montgomery’s presenting condition), and of the alternative option of an elective Caesarean Section. Her obstetrician, Dr. McLellan, argued that this information did not meet the requirements of the Bolam standard because the consequent risk that the baby would suffer a grave permanent injury was very small indeed—less than 0.1% of cases give rise to prolonged hypoxia, and less than 0.2% of cases result in brachial plexus injury from the McRoberts manoeuvre that is clinically indicated to resolve shoulder dystocia. The lower courts accepted Dr. McLellan’s defence in general terms, but, in the Supreme Court, the justices’ reasoning hinged predominantly on precisely what standard ought to be endorsed by the court in order to determine whether Dr. McLellan had disclosed information about the risks facing Mrs. Montgomery correctly. Incorporating an approach borrowed in its entirety from Rogers v Whitaker [36], a 25-year-old Australian High Court judgment, the seven justices of the UK Supreme Court concluded unanimously that information about risk that was material to a patient’s decision to give or withhold consent should be judged by reference to a new two-limbed test. This new test of materiality requires risk to be disclosed when, in the circumstances of the particular case: 1. A reasonable person in the patient’s position would attach significance to the risk, or 2. The doctor is or should reasonably aware that the particular patient would be likely to attach significance to it [27]. On the basis of this test, the justices concluded that the risk of shoulder dystocia ought to have been disclosed to Mrs. Montgomery, irrespective of the low consequent risk that this complication would lead to a severe negative outcome for the baby. It was also accepted that, had this risk been disclosed and Mrs. Montgomery had been offered a caesarean section, she would not have opted for a vaginal delivery and the disability to the child would not have occurred. The negligence had, therefore, been shown to have caused a harm. The role and scope of the application of this new test of materiality in the treatment decision-making context is also worthy of brief discussion. Montgomery 13 Health Care Analysis focused largely on the question of risk disclosure: essentially what risks ought to be disclosed in order for valid informed consent to have been obtained. However, judgements made about information about risk that should be disclosed to a patient will often have a direct impact on the range of alternative or variant treatments that a patient should be offered accordingly. This was indeed the case in Montgomery, where the requirement to disclose information about the risk of shoulder dystocia led to a subsequent and direct requirement for Mrs. Montgomery to have been advised about the alternative of an elective Caesarean Section [28]. Recent commentary on Montgomery has drawn attention to a core tension that now exists between the new standard by which risk disclosure is to be judged, and, as part of the same doctor–patient interaction, the requirement to offer alternative treatments to patients that are judged as reasonable to offer on the basis of the Bolam standard [24]. In cases such as Birch [1] the Bolam-mandated alternative treatment options that ought to have been offered to a patient was a decision to be taken prior to the requirement to tailor risk disclosure requirements around the reasonable patient’s concerns, on the basis of the reasonable alternative options identifi (...truncated)