Cited â Montgomery v Lanarkshire Health Board SC 11-Mar-2015 Change in Doctorsâ Information Obligations The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. However, the Judges go on to say the assessment as to whether a risk is material cannot be confined to percentages. 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. “[r]esponsibility for determining the nature and extent of a person’s rights rest with the courts, not with the medical professions”. L.R. Analysis of the Application of the Standby Letter of Credit for Chinese Issuers’ Offshore U.S. Dollar Bond Issuance, The Great Potential for Hong Kong to Widely Apply Mediation in Resolving Wealth Management Disputes. As a result of Montgomery, the Bolam test, or medical opinion, no longer applies to information provision and disclosure, including as to risk – the second situation. Montgomery v Lanarkshire Health Board  ... Mrs Montgomery was a diabetic woman, and therefore likely to have a large baby. Share it. The baby was later diagnosed with a retinal condition, which severely limited his sight. If the Montgomery judgment is followed in Hong Kong then it is likely the plea that a known risk, which was warned of and consented to by the patient, will increase where the risk manifests. There is now a strong ethical perspective permeating medical law. The Royal College of Surgeons, acting upon this judgment, has just issued new guidelines on patient consent in October 2016. 45. 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. The test of materiality is whether, in the circumstances of the particular case, 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.”. 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. Rptr. 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. Ratio decidendi-Wikipedia. Medicine is a changing field, and the way it is practised is in many ways T HE 2015 SUPREME Court decision on Montgomery vs NHS Lanarkshire (see below) has signiï¬ cant implications for doctorâpatient communications, information sharing and informed consent. See Montgomery v. Lanarkshire Health Board  UKSC 11, . or from it being protected indirectly by the development of new interests. The baby faced a birth with shoulder dystocia â the inability of the shoulders to pass through the pelvis. They suggest, non-inclusively, factors to be taken into account. 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 â¦ Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs Montgomery. The UK Parliaments considers ethical principles when legislating on issues such as organ donation and abortion, and judges frequently consider ethical dilemmas in medicine. 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. The Storm is Coming, Where Can the Greater China Issuers Go?  However, it has caused some consternation among healthcare  However, it has caused some consternation among healthcare Contents: (i) Introduction (ii) Background to the decision in Montgomery (iii) What Montgomery decided (iv) The Claimantâs perspective (v) The Defendantâs perspective. There is now a strong ethical perspective permeating medical law. Normally, a panel of three or five sits on a run of the mill cases. International Alliance of Patients' Organizations, Consensus Framework for Ethical Collaboration, Royal College of Surgeons Guidelines: Consent, Rogers v Whittaker  HCA 58, (1992) 175 CLR 479, Canterbury v. Spence ((18) (1972) 464 F 2d 772), Reibl v. Hughes ((19) (1980) 114 DLR (3d) 1). 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! Policy. View Montgomery.docx from HEALTHCARE 231 at Universiti Teknologi Mara. was the General Pinochet extradition hearing In Re Pinochet 1998 . An example might be the facts of Sidaway where the surgeon warned of a risk of damage to a nerve root but not of a less than 1 percent risk of damage to the spinal cord. 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. They go on to make the point that departure from the Bolam test will reduce the predictability of the outcome of litigation. Professor Jacques du Plessis (Stellenbosch) Professor Horatia Muir Watt (Paris) Professor Vernon Palmer (Tulane) Professor Tony Prosser (Bristol) Professor Lionel Smith (Montreal) The ratio decidendi of the case is inconsistent with and cannot be reconciled with the rules laid down in the later cases of Sherbert v. Verner, supra, People v. Woody, supra, and Syrek v. California Unemployment Insurance Appeals Board (1960) 54 Cal. The decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board  has at long last formally overruled the decision of the House of Lords in Sidaway v The Royal Bethlem Hospital. The patient is entitled to decide on the risks to her health which she is willing to run. Wednesday, 9 November 2016. The judges emphasise the assessment is fact sensitive and also sensitive to the characteristics of the patient. But an interest in autonomy per se is difficult to â¦ Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs Montgomery. The key element of a case is called the ratio decidendi (reason for the decision). The Montgomery case in 2015 was a landmark for informed consent in the UK. His Honour Judge Collender QC commented that âMontgomery 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.â Indeed it may be that if a risk is known extra care should be taken to avoid that risk. ... 112 Indeed, Montgomery v Lanarkshire Health Board  UKSC 1 1 shows that such an. Sidaway vs Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and others, (1985) AC 871 (House of Lords 1985). Case Comment: Montgomery v Lanarkshire Health Board  UKSC 11. Montgomery v Lanarkshire Health Board concerned a negligent nonâdisclose of certain risks involved in natural birth. The UK Supreme Court judgement in âMontgomery v Lanarkshire Health Boardâ1has become the land- mark case in consolidating the law on standard of care of doctors with regard to duty on disclosure of information to patients on the risks of proposed treatment and possible alternatives.2Doctors are now obliged to take âreasonable care to ensure that the patient is aware of â¦ Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Lord â¦ Consequently, he was born with a dyskinetic form of cerebral palsy. 47. For the mother involved, who had argued that she had not been told of significant risks surrounding her sonâs birth, this was the culmination of a 16-year battle for compensation. Advisory Board. In consequence, he suffered cerebral palsy, with all four of his limbs being affected. Heather Beckett, John Radford Practising Midwife 2016, 19 â¦ In perhaps the core passage, the Judges hold: “an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. This has to be welcomed by all patients, and it is hoped the Montgomery decision will be followed in Hong Kong. Facts. It is this ratio decidendi which binds lower courts. Women suffering from diabetes are likely to have babies that are larger than normal, which brings with it an increased risk of approximately 10 percent of shoulder dystocia during delivery. In March, the Supreme Court handed down a unanimous decision in the Montgomery v Lanarkshire Health Board case. In Montgomery the expectant mother argued, ultimately successfully before the Supreme Court, that she should have been warned of the risk of shoulder dystocia and advised of the alternative of a caesarean section. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the â¦ 2. self-defence - defence to assault - reasonable response - proportional - it is a complete defence to an action of assault if â¦ Lanarkshire Health Board, who was responsible for Mrs Montgomeryâs care during her pregnancy and labour. Montgomery v Lanarkshire Health Board [20151. 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. So it was on 22 July 2014; seven Law Lords heard the appeal in the Montgomery v Lanarkshire Health Board  UKSC 11, . 44. IAPO is a UK-registered charity (Number 1155577) and a company limited by guarantee (Number 8495711). 46. Why increasing patient engagement improves health systems: IAPO at Geneva Health Forum. 48. Bolam vs Friern Hospital Management Committee  2 All.E.R.118; Montgomery (Appellant) vs Lanarkshire Health Board (Respondent) (2015), UKSC 11. Even though Mrs. Montgomery expressed concern about the size of her baby the doctor did not warn her of the risk of shoulder dystocia. Medicine is a changing field, and the way it is practised is in many ways Contents: (i) Introduction (ii) Background to the decision in Montgomery (iii) What Montgomery decided (iv) The Claimantâs perspective (v) The Defendantâs perspective. Shoulder dystocia, whereby the width of the baby’s shoulders are such that they cannot pass down the birth canal and so the baby cannot be born vaginally unless the baby’s shoulders are somehow freed (or the baby returned to the womb and an emergency caesarean section performed), is an obstetric emergency for the mother, with serious potential adverse consequences for the baby. Physicians will now have to show that they have gone through the whole spectrum of activities in supporting the patient access ALL the information and advice, including supporting more vulnerable patients access a patient advocacy service, and log this in their medical records to avoid liability for negligent advice. Ratio decidendi-Wikipedia. In 1999, while delivering her baby vaginally, shoulder dystocia occurred. 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. 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. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the â¦ 47. Two years on, Sarah Chan and colleagues discuss the consequences for practising doctors The Montgomery v Lanarkshire case of March 20151 drew fresh attention to informed consent. This ups the ante on the medical profession, especially in the commercialised private practice of medicine in Hong Kong, in the event of Montgomery being followed by the Hong Kong courts or, at least, until it becomes clear that the decision will not be followed. 2d 519 [7 Cal. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. The Law Society of Hong Kong | Sweet & Maxwell | Westlaw Asia | Contact Us. (i) Introduction 2. 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 hospital was aware of this throughout her pregnancy. 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. Martin has not been cited in any subsequent case. 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. This consists of the material facts of the case and the decision made on them. Rptr. 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. 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. The facts were that a pregnant diabetic type 1 patient had not been warned by her obstetrician that because diabetic mothers have bigger babies that are relatively large to the size of the mother’s pelvis, that there was an inherent risk that natural birth may result in shoulder dystocia as the birth maybe be obstructed. Montgomery v Lanarkshire Health Board  ... Mrs Montgomery was a diabetic woman, and therefore likely to have a large baby. Legal consent and the law was defined by the Sidaway v Board of Governors of the Bethlem Royal Hospital  AC 871  1 All ER 643, which was relying on the ‘Bolam Test’ defined in the Bolam v Friern Hospital Management Committee  1 WLR 582: When advising the patient, the doctor was not guilty of negligence if she had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art. Srikrishna BN. Montgomery v Lanarkshire Health Board. 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. 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. Professor Jacques du Plessis (Stellenbosch) Professor Horatia Muir Watt (Paris) Professor Vernon Palmer (Tulane) Professor Tony Prosser (Bristol) Professor Lionel Smith (Montreal) 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 â¦ The Judges also caution against abuse of what they term the therapeutic exception. Secondly, the judgment in Montgomery emphasises dialogue with the patient, and the fact information conveyed must be comprehensible. Bolam vs Friern Hospital Management Committee  2 All.E.R.118; Montgomery (Appellant) vs Lanarkshire Health Board (Respondent) (2015), UKSC 11. BUPA Ireland Ltd. v. Health Insurance Authority & Ors  IEHC 291 (22 July 2005) Halley v. Nolan & Ors  IEHC 224 (1 July 2005) South Western Area Health Board v. Information Commissioner  IEHC 177 (31 May 2005) Grace v. Kachkar & Anor  IEHC 160 (5 May 2005) September 8th 2005 High Court. Sidaway v. Board of Governors of the Bethlem Royal Hospital  AC 871, 900 (Lord Bridge). Can we do more to prevent antimicrobial resistance? Montgomery v Lanarkshire Health Board - doctor was negligent - small, diabetic, pregnant - small pelvis > mother and baby suffered injury. 97, 354 P.2d 625]. 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. She also delivered the baby. When a panel of seven Law Lords sits on a UK Supreme Court (UKSC) appeal hearing, you can bet something is afoot. It is recorded in the judgment that it took some 12 minutes between the baby’s head appearing and the effecting of delivery. 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 â¦ In so doing the court has effectively conscribed the ambit of the Bolam test, which has traditionally made it difficult for a plaintiff alleging â¦ They say whether the risk of an injury or an alternative treatment ought to be discussed with the patient is not a matter of purely professional medical judgment. 97, 354 P.2d 625]. (i) Introduction 2. Indian legal system. She was also of the view that caesarean sections were not in the maternal interest.