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.

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.

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.

scholarly journals FREDA: a human rights-based approach to healthcare

2010 ◽  
Vol 34 (4) ◽  
pp. 150-156 ◽  
Author(s):  
Martin J. Curtice ◽  
Tim Exworthy
Keyword(s):  
Human Rights ◽  
Healthcare Professionals ◽  
Case Law ◽  
Technical Knowledge ◽  
Knowledge Deficit ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
Human Rights Based Approach ◽  
Organisational Level

SummaryThe introduction of the Human Rights Act 1998 in the UK has not led to widespread knowledge and understanding in patient and carer groups, healthcare professionals or at an organisational level. This knowledge deficit has been recognised by government bodies and other agencies, which has led to the introduction of a bottom-up human rights-based approach that can be used by individuals and organisations alike in everyday practice. It avoids the need to have technical knowledge of the Human Rights Act and associated case law and is based upon concepts that underpin all the articles of the Act. The human rights-based approach is the process by which human rights can be protected by adherence to underlying core values of fairness, respect, equality, dignity and autonomy, or FREDA.

Cross-fertilisation of Constitutional Ideas

2013 ◽  
Author(s):  
Petra Butler
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Bill Of Rights ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Uk Supreme Court ◽  
The Uk

This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.

scholarly journals Managing Sexually Transmitted Infections in Pregnant Women

2012 ◽  
Vol 8 (3) ◽  
pp. 313-321 ◽  
Author(s):  
Nadi K Gupta ◽  
Christine A Bowman
Keyword(s):  
Sexually Transmitted Infections ◽  
Treatment Options ◽  
Public Health Problem ◽  
Major Public Health Problem ◽  
National Guidelines ◽  
Sexually Transmitted ◽  
Recommended Treatment ◽  
Adverse Pregnancy ◽  
The Uk ◽  
Birth Preterm

Sexually transmitted infections (STIs) constitute a major public health problem in the UK and may result in very costly complications. Many STIs pose the risk of a number of adverse pregnancy outcomes including miscarriage, still birth, preterm delivery, low birth weight and ophthalmia neonatorum. National guidelines for the management of STIs are produced and regularly revised by the British Association of Sexual Heath and HIV. This review outlines the latest recommended treatment options during pregnancy for the commonly encountered STIs.

Exploring access to rehabilitation services from allied health professionals for patients with primary high-grade brain tumours

2011 ◽  
Vol 25 (8) ◽  
pp. 788-796 ◽  
Author(s):  
Aileen McCartney ◽  
Claire Butler ◽  
Sue Acreman
Keyword(s):  
Brain Tumour ◽  
Brain Tumours ◽  
Healthcare Professionals ◽  
Treatment Options ◽  
Primary Objective ◽  
Rehabilitation Services ◽  
Structured Interviews ◽  
Allied Health Professionals ◽  
Primary Brain Tumours ◽  
The Uk

Primary brain tumours account for less than 2% of cancer diagnoses in the UK but more people under 40 die from a brain tumour than from any other cancer. Despite developments in some treatment options, survival remains poor and patients suffer with considerable functional and cognitive deficits. Rehabilitation for patients with primary brain tumours produces statistically and clinically significant improvements in function. When compared, similar functional gains are made following rehabilitation for brain tumour patients and for those following stroke and traumatic brain injury. There have been very few studies looking at access to rehabilitation for this group of patients as a primary objective. However, existing studies and clinical experience suggest that patients with brain tumours do not access rehabilitation services frequently or easily, either locally or nationally. Therefore, this qualitative study addressed the reasons for this through semi-structured interviews of healthcare professionals, investigating their experiences of rehabilitation for this patient group and describing commonly identified barriers under key themes. The interviews gauged the views of eight healthcare professionals representing three professions in different settings, including hospital and community based. The resultant barriers fell under the following themes: professional knowledge and behaviours; services and systems; and the disease and its effects. Suggested solutions were wide ranging and included education, multidisciplinary meetings and specialist clinicians to co-ordinate care. The barriers to accessing rehabilitation for this group of patients are complex, but some of the solutions could be reached through education and co-ordination of services. Further research into the benefits of, and access to, rehabilitation for this group of patients is essential to ensure that patients with brain tumours are given opportunity to gain from the benefits of rehabilitation in the same way as other diagnoses, both cancer and non-cancer.

scholarly journals You Can’t be Serious

2018 ◽  
Vol 1 (1) ◽  
pp. 1-23
Author(s):  
Albert Sanchez-Graells
Keyword(s):  
Public Procurement ◽  
Case Law ◽  
Main Function ◽  
Eu Law ◽  
The European Union ◽  
Public Enforcement ◽  
Nuclear Decommissioning ◽  
Uk Supreme Court ◽  
State Liability ◽  
The Uk

This paper offers some reflections on the position advanced by the EFTA Court that a simple breach of EU public procurement law is in itself sufficient to trigger the contracting authority’s liability in damages (Fosen-Linjen). I argue that this position is flawed because it deviates from previous case law of the Court of Justice of the European Union (Spijker), and because it is based on interpretive errors and internal contradictions in the EFTA Court’s reasoning. In criticising the EFTA Court’s Judgment from the perspective of the harmonisation of EU law, I rely on the better view of the UK Supreme Court. The latter held that the liability of a contracting authority for the breach of EU public procurement rules under the remedies directive is assimilated to that of the State under the general EU law doctrine of State liability and thus requires a sufficiently serious breach (Nuclear Decommissioning Authority). My reflections are based on the need to keep procurement damages litigation constrained to its main function and limited to justified cases. I use this normative position to argue against the expansion of private enforcement of EU public procurement law as a correction of the shortcomings in its public enforcement.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

AbstractThe judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

scholarly journals 202 Consenting Practice for Post-Cholecystectomy Diarrhoea After Laparoscopic Cholecystectomy – Are We Missing A Trick?

2021 ◽  
Vol 108 (Supplement_6) ◽  
Author(s):  
K Matwala ◽  
M R Iqbal ◽  
T Shakir ◽  
S Karamanakos
Keyword(s):  
Laparoscopic Cholecystectomy ◽  
Healthcare Professionals ◽  
Chronic Diarrhoea ◽  
Health Board ◽  
Consent Forms ◽  
Consecutive Period ◽  
Elective Laparoscopic Cholecystectomy ◽  
Assess Quality ◽  
The Uk

Abstract Aim The landmark case of Montgomery v Lanarkshire Health Board led to the defensive Bolam test being discredited and paved the way healthcare professionals (HCP) obtain informed consent. The recent GMC guidance on Decision Making and Consent 2020, states that the HCP should discuss recognised risks that they believe anyone in the patient’s position would want to know. Laparoscopic cholecystectomy is one of the most common general surgical procedures performed in the UK. Chronic diarrhoea is a well-recognised complication with significant impact on patient quality of life (QoL). We aimed to assess quality of consent forms for laparoscopic cholecystectomies with emphasis on documentation of chronic diarrhoea being a consequence of the procedure. Method A retrospective review of all elective laparoscopic cholecystectomy consent forms over a 2-month consecutive period from July 1st 2020 to August 31st 2020 was carried out. Results 43 consent forms were audited. The majority of these consent forms were done by consultants (74.4%: 32/43) while 23.2% (10/43) by registrars. Overall, 39.5% (17/43) of patients were consented for experiencing chronic diarrhoea. Registrars more commonly mentioned diarrhoea (60%: 6/10) compared to consultants (31.2%: 10/32). Conclusions The majority of patients undergoing laparoscopic cholecystectomy are not consented for post-cholecystectomy diarrhoea which is a significant QoL-altering complication. Education combined with a standardised consent form and issuing of patient leaflets will improve consenting for chronic diarrhoea.

Administrative Procedure and Judicial Review in the United Kingdom

2021 ◽  
pp. 82-86
Author(s):  
Sarah Nason
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Case Law ◽  
Administrative Law ◽  
High Court ◽  
Administrative Procedure ◽  
The United Kingdom ◽  
Uk Supreme Court ◽  
The Uk ◽  
To Receive

This chapter focuses on administrative procedure and judicial review in the United Kingdom. Initially, it should be stressed that administrative law is different across the UK due to devolution. The UK Supreme Court generally acts as a final court of harmonizing case-law principles. As the UK constitution is uncodified, the existence of constitutional provisions concerning judicial review remains somewhat controversial, but the necessity of judicial review is thought to be required by the rule of law. The scope of judicial review is generally governed by judicial precedent. Under section 84 of the Criminal Justice and Courts Act 2015, the High Court must refuse to grant a remedy 'if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. In general, there is no right on judicial review to claim damages for losses caused by unlawful administrative actions. It is usually only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review.

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