scholarly journals Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

2018 ◽  
Vol 44 (6) ◽  
pp. 384-388 ◽  
Author(s):  
Malcolm K Smith ◽  
Tracey Carver
Keyword(s):  
Informed Consent ◽  
Information Disclosure ◽  
Healthcare Providers ◽  
Health Board ◽  
Patient Decision Making ◽  
Rigorous Approach ◽  
Patient Decision ◽  
Uk Supreme Court ◽  
The Uk ◽  
Negligence Law

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

Informed consent, Montgomery and the duty to discuss alternative treatments in England and Australia

2020 ◽  
Vol 25 (5) ◽  
pp. 187-193
Author(s):  
Tracey Carver
Keyword(s):  
Information Disclosure ◽  
Healthcare Professionals ◽  
Treatment Options ◽  
Case Law ◽  
Health Board ◽  
Alternative Treatments ◽  
Recommended Treatment ◽  
Uk Supreme Court ◽  
The Uk ◽  
Treatment Risks

The UK Supreme Court in Montgomery v Lanarkshire Health Board imposes a duty on healthcare professionals in relation to information disclosure. The obligation is to take reasonable care to ensure that patients are aware, not just of material risks inherent in any recommended treatment, but of any reasonable alternative treatments. While liability for information non-provision was previously decided according to whether the profession would deem disclosure appropriate, the law now judges the sufficiency of information from a patient’s perspective. In doing so, it adopts the approach advocated for Australia in Rogers v Whitaker. However, commentators, in this journal and elsewhere, have expressed concern that the disclosure obligation is unclear. Although Montgomery defines what is ‘material’ for the purpose of identifying notifiable treatment risks, it offers less guidance as to when alternative treatments will be sufficiently ‘reasonable’ to warrant disclosure. Through an analysis of Australian and UK case law and examples, this article considers the ambit of a practitioner’s duty to discuss alternatives. It concludes that although likely subject to further litigation, the identification of reasonable treatment options requiring disclosure will be influenced by the patient’s clinical condition, their prognosis and viable options from a medical perspective, and various non-clinical matters influenced by the test of materiality.

Consent for septoplasty: Are we meeting patients’ expectations?

2021 ◽  
pp. 002581722110426
Author(s):  
Haseem Raja ◽  
Rishi Talwar
Keyword(s):  
Informed Consent ◽  
Supreme Court ◽  
Literature Search ◽  
Significant Proportion ◽  
Health Board ◽  
Current Standard ◽  
Negative Change ◽  
Uk Supreme Court ◽  
The Uk ◽  
Nose And Throat

The requirements for informed consent were modified in 2015 following the UK Supreme Court judgment of Montgomery v Lanarkshire Health Board. This marked a decisive shift from the traditional paternalistic ‘doctor knows best' model towards a more patient-centred approach. This study examines the current standard of consent for septoplasty and whether it complies with the law. We also report whether the ‘reasonable patient’ and surgeon agree about which risks should be discussed during the consent process. Ten complications were identified as common or serious via a literature search. Using questionnaires, 21 Ears, Nose and Throat surgeons were asked which of these they routinely discussed, and 103 patients were asked how seriously they regarded those complications. Results were compared using the Test of Proportions. Most surgeons routinely discuss all risks except negative change in sense of smell and numbness of upper incisors. The ‘reasonable patient’ regarded these two complications as serious or very serious. However, less than 70% of surgeons mentioned them. A significant proportion of Ears, Nose and Throat surgeons do not routinely mention all the risks that the ‘reasonable patient' would want to know about before undergoing a septoplasty. This may result in more clinical negligence claims, as managing a patient's reasonable expectations is an important factor.

The cost of consent: why healthcare providers must be compliant with the Montgomery principles

2020 ◽  
Vol 102-B (5) ◽  
pp. 550-555
Author(s):  
Nick Birch ◽  
Nick V. Todd
Keyword(s):  
Positive Impact ◽  
Healthcare Providers ◽  
International Comparisons ◽  
Point Of View ◽  
Public Healthcare ◽  
Health Board ◽  
Malpractice Claim ◽  
The Usa ◽  
The Uk ◽  
The Cost

The cost of clinical negligence in the UK has continued to rise despite no increase in claims numbers from 2016 to 2019. In the US, medical malpractice claim rates have fallen each year since 2001 and the payout rate has stabilized. In Germany, malpractice claim rates for spinal surgery fell yearly from 2012 to 2017, despite the number of spinal operations increasing. In Australia, public healthcare claim rates were largely static from 2008 to 2013, but private claims rose marginally. The cost of claims rose during the period. UK and Australian trends are therefore out of alignment with other international comparisons. Many of the claims in orthopaedics occur as a result of “failure to warn”, i.e. lack of adequately documented and appropriate consent. The UK and USA have similar rates (26% and 24% respectively), but in Germany the rate is 14% and in Australia only 2%. This paper considers the drivers for the increased cost of clinical negligence claims in the UK compared to the USA, Germany and Australia, from a spinal and orthopaedic point of view, with a focus on “failure to warn” and lack of compliance with the principles established in February 2015 in the Supreme Court in the case of Montgomery v Lanarkshire Health Board. The article provides a description of the prevailing medicolegal situation in the UK and also calculates, from publicly available data, the cost to the public purse of the failure to comply with the principles established. It shows that compliance with the Montgomery principles would have an immediate and lasting positive impact on the sums paid by NHS Resolution to settle negligence cases in a way that has already been established in the USA. Cite this article: Bone Joint J 2020;102-B(5):550–555.

scholarly journals Anesthesiology Trainees Face Ethical, Practical, and Relational Challenges in Obtaining Informed Consent

2009 ◽  
Vol 110 (3) ◽  
pp. 480-486 ◽  
Author(s):  
David B. Waisel ◽  
Giulia Lamiani ◽  
Norma J. Sandrock ◽  
Robert Pascucci ◽  
Robert D. Truog ◽  
...  
Keyword(s):  
Informed Consent ◽  
Communication Skills ◽  
Key Words And Phrases ◽  
Ethical Challenges ◽  
Patient Decision Making ◽  
Patient Decision ◽  
Decision Making Capacity ◽  
Included Patient ◽  
Education Performance ◽  
Trainee Competence

Background Categorizing difficulties anesthesiologists have in obtaining informed consent may influence education, performance, and research. This study investigated the trainees' perspectives and educational needs through a qualitative analysis of narratives. Methods The Program to Enhance Relational and Communication Skills-Anesthesia used professional actors to teach communication skills and relational abilities associated with informed consent. Before attending the program, participants wrote about a challenging informed consent experience. Narratives were analyzed by two researchers following the principles of grounded theory. The researchers independently read the narratives and marked key words and phrases to identify reoccurring challenges described by anesthesiologists. Through rereading of the narratives and discussion, the two researchers reached consensus on the challenges that arose and calculated their frequency. Results Analysis of the 39 narratives led to the identification of three types of challenges facing anesthesiologists in obtaining informed consent. Ethical challenges included patient wishes not honored, conflict between patient and family wishes and medical judgment, patient decision-making capacity, and upholding professional standards. Practical challenges included the amount of information to provide, communication barriers, and time limitations. Relational challenges included questions about trainee competence, mistrust associated with previous negative experiences, and misunderstandings between physician and patient or family. Conclusions The ethical, practical, and relational challenges in obtaining informed consent colored trainees' views of patient care and affected their interactions with patients. Using participant narratives personalizes education and motivates participants. The richness of narratives may help anesthesiologists to appreciate the qualitative aspects of informed consent.

scholarly journals Converting the Informed Consent From a Perfunctory Process to an Evidence-Based Foundation for Patient Decision Making

2008 ◽  
Vol 1 (1) ◽  
pp. 21-28 ◽  
Author(s):  
Suzanne V. Arnold ◽  
Carole Decker ◽  
Homaa Ahmad ◽  
Olawale Olabiyi ◽  
Surya Mundluru ◽  
...  
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Evidence Based ◽  
Patient Decision Making ◽  
Patient Decision

Malpractice Liability for the Failure to Adequately Educate Patients: The Australian Law of “Informed Consent” and Its Implications for American Ethics Committees

1993 ◽  
Vol 2 (3) ◽  
pp. 371-379
Author(s):  
Don Chalmers ◽  
Robert Schwartz
Keyword(s):  
Informed Consent ◽  
Healthcare Providers ◽  
Ethics Committees ◽  
Simple Description ◽  
High Court ◽  
American Patient ◽  
Malpractice Liability ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Substantive Law

At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and adopted the “American” patient-oriented standard (rather than the British doctor-oriented standard) for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era.

scholarly journals The far-reaching implications of Montgomery for risk disclosure in practice

2018 ◽  
Vol 24 (1) ◽  
pp. 25-29 ◽  
Author(s):  
Sarah Devaney ◽  
Craig Purshouse ◽  
Emma Cave ◽  
Rob Heywood ◽  
José Miola ◽  
...  
Keyword(s):  
Informed Consent ◽  
Patient Autonomy ◽  
Service Providers ◽  
General Medical Council ◽  
Medical Council ◽  
Court Decisions ◽  
Risk Disclosure ◽  
Risks And Benefits ◽  
Uk Supreme Court ◽  
The Uk

The UK Supreme Court held in Montgomery v Lanarkshire HB (2015) that practitioners must take reasonable care to ensure patients are aware of any material risks involved in treatment. 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. We found that Montgomery’s application has been expanded in a number of ways: information about reasonable alternatives includes the provision of information about their risks and benefits; Montgomery applies to post- as well as pre-operative disclosure; and the timing of discussion with patients about risks is important. Conversely, there is evidence that the parameters of Montgomery are being curtailed, giving rise to questions about judicial commitment to patient autonomy. In some cases there is focus on the objective risks of procedures as opposed to patients’ subjective concerns; in others, causation of injury is sometimes a factor that will defeat claims. There are also further questions about whether patients now should accept more responsibility for the outcome of decisions they make. We conclude that practitioners engaged in discussions about the risks of proposed treatments and their alternatives have been left in a position of uncertainty by the courts in relation to the obtaining of informed consent in practice. It is now critical that updated guidance is provided by the UK General Medical Council to give practitioners and service providers confidence that they are adhering to the law.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Julie Chor ◽  
Katie Watson
Keyword(s):  
Government Regulation ◽  
Ethical Issues ◽  
Healthcare Providers ◽  
Health Providers ◽  
Reproductive Ethics ◽  
Patient Decision Making ◽  
Societal Factors ◽  
Patient Decision ◽  
Political Controversy ◽  
Reproductive Healthcare

Like all clinicians, reproductive healthcare providers face specialty-specific ethical questions. However, the first editor of this book, Dr. Julie Chor (JC), an obstetrician-gynecologist who also completed a Complex Family Planning Fellowship, has never found an ethics text that is tailored to the needs of practicing clinicians, students, and trainees in reproductive healthcare. This is an unfortunate gap in the literature because whether reproductive health providers come from obstetrics and gynecology, family medicine, pediatrics, or another field, they all must be able to identify and analyze complex ethical issues that lie at the crossroads of patient decision-making, scientific advancement, political controversy, government regulation, and profound moral considerations in the context of continually evolving medical, legal, and societal factors. To fill this gap, Dr. Chor invited co-editor Professor Katie Watson (KW), a bioethics professor and lawyer who focuses on reproductive ethics, to partner in creating the text that she has always longed to use but has never found while practicing and teaching in this complex milieu....

Submitting medico-legal intra-partum CTG (I-P CTG) monitoring to the Bolam and Bolitho principles

2016 ◽  
Vol 85 (2) ◽  
pp. 93-96
Author(s):  
George G Buttigieg
Keyword(s):  
Birth Asphyxia ◽  
Case Law ◽  
Health Board ◽  
Medical Jurisprudence ◽  
Foetal Monitoring ◽  
Legal Principle ◽  
Uk Supreme Court ◽  
The Individual ◽  
The Uk ◽  
Based Medicine

The article analyses some of the seeming weaknesses of the Bolam and Bolitho tests as applied to electronic foetal monitoring in labour, in the form of intra-partum CTG monitoring. Homing on to such aspects as confirmation of foetal hypoxia/acidosis, it evaluates the Bolam and Bolitho tests in the context of evidence-based medicine versus traditionally held views, which still hold their own in medical jurisprudence. Case law examples are quoted to illustrate various points. The discussion is of practical relevance both to the individual obstetrician as well as to national budgetary implications, bearing in mind, that, for example, in 2011, ‘birth asphyxia’ comprised 50% of the UK NHS litigation costs, and in the 2000–2010 decade, the same NHS forked out £3.1 billion for maternity medico-legal claims (the highest of any speciality), mostly involving cerebral palsy and CTG misinterpretation. The article concludes with suggestions to help level the potential extant equivocity between legal principle and medical practice. It also looks at the ruling in Montgomery v Lanarkshire Health Board, UK Supreme Court, and its challenge to Bolam. The implications pose a serious and overdue challenge to a test, born in 1957 and lacking the necessary qualities to serve many 21st century medical quandaries, including the ones raised here.

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