Abstract
Establishing the principle of informed consent, it means that the UK Supreme Court in Lanarkshire Health Board versus Montgomery belatedly ended up following the Australian decision of Whitaker versus Rogers, a decoupling the responsibilities of informed patients concerning the material risks of the clinical treatment from Bolam. Basically, the primary commitment to patients’ autonomy corresponds with the medical laws established for the purpose of protecting the rights of capacitated patients. It is the same treatment that aid physicians to come up with treatment decisions, which others might consider being bizarre because they are likely to harm the patient.
Therefore, it is apparently anomalous that the Supreme Court had to rely on therapeutic exception (TE) simply because it had the potential of suggesting the primary paternalistic approach to be used. Regardless of this view, some of the international examples principally suggest that use of the TE do not essentially clash with clinical commitment to patient’s autonomy. In other nations, such an exception end up alleviating the various objective test of materiality through assisting physicians in exceptional situations to offer protection to patient’s autonomy or interests. Likewise, in other countries, the main objective of the TE entails protecting those incapable of autonomous from any perceived harm. However, in Wales and England, the unconventional mechanism can equally be interpreted for the purpose of protecting a patient or patients from harm. Because of such views, it can be lawfully argued that the therapeutic exception (TE) is unjustified, unnecessary, and obfuscatory.
Nevertheless, from medical point of view, the duty of the physicians entails offering patients with advice as well as obtaining permission before treating the patient. Unfortunately, we can acknowledge that has changed significantly taking into account the decision arrived by the Supreme Court in the case involving Lanarkshire Health Board versus Montgomery. It, therefore, implies that it is not sufficient for physicians to comply with is perceived to be responsible practices within their area of specialization. The only option that they have is to act according to what the patient could convincingly expect. Logically, the yardstick it fundamentally set by the patients and not by the medical profession.
It can equally be argued that the Supreme Court in Lanarkshire Health Board versus Montgomery is one of the landmark decisions founded by the Supreme Court in favor of informed consent or approval for the patient who required counseling to persuade her to undergo clinical treatment. As a result of that, the Supreme Court efficiently conscribed the realm of the Bolam test. Traditionally, in the context of clinical services and in cases concerning consent, such a test had made it difficult for plaintiff asserting negligence to effectively bring a claim that could replace clinical opinion with that of the patient.
Introduction
In March 2015, a considerable change in the law occurred that had profound implications for physicians and patients trying to discuss the options for their treatment as well as seeking consent or permission for them. From the medical point of view, it is vital for physicians to be informed the extent at which the law has been altered so as to keep on ensuring that they continue complying with their onerous duties (Karen, 2017). The Supreme Court in Lanarkshire Health Board versus Montgomery case assisted in redefining the legal relationships that exist between physicians and patients. Ideally, it assisted to enshrine or protect some of the law principles that existed before in the good medical practice (GMC) practice (Ruth et al., 2014).
As far as the guidance was to be implemented, it implies that it could have induced any significant changes to GMC practice. However, the reality could have been that some of the busy physicians under considerable time pressures may not have the potential of offering enough consideration to the consent process. Due to the fact that the time offered within the NHS practice for clinical consultations is perceived to be inadequate, it means that the medical profession will be forced to try and change its practices. The reason for that is because that has the potential of enabling them to continue complying with legal responsibilities (Hobson, 2016).
Facts
In October 1999 and in a hospital at Lanarkshire, Nadine Montgomery was lucky to give birth to her first child. Due to shoulder dystocia followed by hypoxia during birth, it was unfortunate that the baby she gave birth to had severe disabilities. What followed is that she claimed that it was the Lanarkshire Health Board that had caused all that. She claimed that the obstetrician who had assisted her to give birth was negligent. Conversely, her accusation was that physicians had negligently failed to first advice her about the prevailing risks of vaginal delivery as compared to elective caesarean section (Hobson, 2016). Because of that, the obstetrician failed to encourage her to accept such an option as compared to vaginal delivery so a way of responding to abnormalities in the cardiotocography (CTG) trace.
Medically, cardiotocography (CTG) is one of the medical techniques that are used for the purpose of recording uterine contractions and fetal heartbeat during pregnancy. Although there is no approved evidence suggesting that the general monitoring the pregnancy risks in women, the whole process has to be performed with caution. Within this context, it means that it all has the ability of assessing and improving fetal wellbeing. Therefore, according to her allegations, the risk of shoulder dystocia that her new born body had after delivery ranged between 9-10% that average. The same risk, taking into account prolonged hypoxia was clinically found to be less than 0.1%. Although it can be perceived to be extremely low, the same risk was materialized at the end of the day (Patrick & Henrik, 2018).
Being having a degree in molecular biology, it made her to be described as being an intelligent woman as far as this case is concerned. As a result of that, she had the potential of weighing up some of the prevailing clinical advice regarding the option the hospital considered to be more effective during delivery. Taking into account the evidence that the obstetrician gave, it is evident that she failed to advice her about shoulder dystocia. According to the physician, such a risk was relatively small. Consequently, if she could have advised her to take such an option, it means that a large percentage of women with the same situation could have ultimate voted for caesarean delivery. Therefore, taking into account the patient’s interests, it implies is that it is her wishes that ended up outweighing the doctor’s assessment. Although in the first instance, such a claim failed, the Supreme Court found out that neither the hospital’s management of labor nor the advice was negligent (Jackson & Oxford University Press, 2016).
Bolam Test
In the late 1957 and during the hearing of the case concerning Bolam test, although now a conventional clinical test, it was affirmed that, a medical physician cannot be considered guilty of negligence in case he or she could have administered treatment that complies with the rules established by medical profession. Alternatively, it was equally affirmed that such a physician could have considered the views of the law that asserts that it he or she decided to act in accordance to the existing medical practice he or she will not be negligent (Dominic et al., 2008). The reason for that is because there are various opinions that can be used as the basis of the same argument.
Likewise, notwithstanding challenges, it implies that the Bolam tests have for long been regarded as the ultimate criteria through which any clinical negligence actions are based upon. In Wales and England, especially in Hong Kong and UK, judges always rely on the reasoning of the physician that could have compelled him or her to take such a step. Considering the case of City and Hackney Health Authority versus Bolitho health in 1998, the court found out that it is such a situation that had initially fostered the modification of the court reasoning. During the hearing of this case, it was advocated that all the bodies of the clinical opinions ought to be respectable, reasonable or responsible so as to ensure that it have instilled defensible and logical (Levene & Chervenak, 2008).
Conventionally, Bolam test has applicable in two situations. The first one entails determining the medical standards that was used to approve administering such a procedure. The second one involves informing the patient about the nature and extent of the medical procedure that the physician proposes and the risk that will follow if she does not comply with it (Karen, 2017). Taking into account the first condition, it means that plaintiff bringing such a claim will not be in the position of succeeding in case the existing respectable body of clinical judgments has the potential of supporting the medical procedure or standards used. Regardless of other medical opinions that might be available, or the presence of multiple medical practitioners, it is evident that his or her claim will be based on the procedure undertaken (Jones, 2004).
On the other hand, taking into account the second condition, the physician cannot be accused of negligence in case what he or she did or failed to say complied with the prevailing body of clinical judgment or opinion. As a result of that, it implies that the medical opinion, (Bolam test), is not applicable to the provision and disclosure of information any more, including the risk that was stated in the second situation (Marc et al., 2011).
Argument
In medical profession, the definition of negligence was initially termed as the Bolam test taking into account the case of Bolam versus the Friern Hospital Management Committee that was held in 1957. During the hearing of this case, the test that was conducted was to ascertain whether the involved physician had acted in accordance to the accepted code of conduct that that were initially implemented or approved by the medical professionals who are skilled in such a field. The application of this test on Bolam was not only to enhance diagnosis or treatment but basically to examine the advice that the doctor had provided. Therefore, the primary question that lingered in Montgomery is whether such a test had the ability of providing the exact reason as to why the test was applied taking into account the physician’s duty of first advising the patient about the risks associated with it (Birju, 2014).
Considering the case Sidaway versus Maudsley Hospital and Bethlem Royal Hospital board of governors versus Sidaway and the Maudsley Hospital that was held in 1985, the Supreme Court’s precursor had ascertained that the doctor’s reasoning did. Accordingly, the existing opinion of the Law Lords approved that it was enough for the physician to explain some of the underlying risks in a way that complied with their medical profession. Medically, this is to imply that it is the duty of the physician to decide and inform the patient about the positive and the negative consequences of the medical attention to be provided (Claudia, 2015). In other words, such a situation can be regarded as being the position or the opinions of the obstetrician that was immediately required to rectify such a situation.
In Sidaway, it was evident that the majority opinion of Lord Scarman is the one that ended up introducing a huge responsibility on the concerns of the patient. According to his reasoning, it was the duty of the doctor to take reasonable health care that could in return had respected the rights of the patient when it comes to deciding whether or not to incur such a risk (Peter, 2013). Although such a decision could not have involved clinical considerations, the truth is that it was important for the patient to be informed about the prevailing factors. For instance, research indicates that the relative significance attached to quality of health care or the relief of pain as compared to bodily integrity, physical appearance, or length of life varies greatly (Imogen & Jonathan, 2018).
Other notable examples indicate that the circumstances or the views of a person have the ability of impacting their thoughts towards the suggested treatment or the reasonable alternatives. As a matter of medical reasoning, it means that the physician cannot be in the position of making objective clinical views of these issues. It is such a reasoning that somehow deters him or her from taking the right decision concerning the best medical attention to be provided (Peter, 2013).
Nevertheless, it was on the majority position that continued to prevail until the case of Ms Montgomery. Before that, it was evident that it was the duty of the doctor to ensure that he or she has explained and advised the patient about the risks that was to follow in a way that complied with the reasoning of the body of clinicians. Therefore, it was not necessary for the patient to be informed about the test to be carried out (Harpwood, 2005).
The change in court ruling
The UK Supreme Court in Montgomery later realized that the majority of the English courts had started reasoning differently in ruling such cases. In return, when it comes to the need of advising the patient about the underlying treatment, the Bolam test was found to be undermined just because of the decisions that were arrived at. The court also realized that there were considerable changes in legal, medical, and social landscape since the Sidaway case. The first change the court found out is that there existed various cultural approaches that were used in establishing and maintaining physician-patient relationships (Claudia, 2015). The reason for that is because people have been perceived to be independent bearers or rights that govern their lives. When it comes to the need of making personal choices, patients are perceived to the one embracing those rights and not being submissive recipients of health care procedures approved by medical profession. In addition, they have to be considered as the main customers exercising choices and not what the health care profession approves to be the right choice (Samanta, 2016).
The next reasoning is that the majority of patients are capable of seeking medical information as compared to traditional times. Ideally, it was realized that they are conversant with the signs, symptoms, examinations, therapeutic options, side-effects, and risks of the treatment to be given. Other than accessing the internet, they have had the opportunity of depending on information leaflets and patient support organization to gather more information about treatment (Camillia, 2017). Moreover, the law requires that it is mandatory for medical suppliers to ensure that they have not only put labels on the products that they supply but also ensure that each content has information leaflets. The reason for that is because it is assumed that with such information, it is possible for patients to have the ability of understanding the conditions of their ailment before weighing up the recommended treatment options (Herring, 2018).
Thirdly, with the continued development in medical profession, protocols such as good medical practice (GMP) have been established. From the perspective of this guidance, it implies that one of the duties of clinicians entails partnering with patients, listening, and responding to their distress and preferences. It is, therefore, important for physicians to ensure that they have provided to patients all that they need or want using the mechanism that enables them to understand its implications. Furthermore, this implies that it is vital to respect the rights of the patients when reaching a reasonable decision with the physician about their medical attention and care (Samanta, 2016).
Fourthly, it is evident that the Human Rights Act 1988 was the one that assisted in developing the Human Rights law. As a result of that, it has been realized that the courts had extremely become conscious about the values of self-determination, for example, in cases dealing with issues of termination of treatment. Moreover, taking into account what the European Convention on Human Rights states, it is important for doctors and their health institution to ensure that they have the rights of patients for personal life as well as other global instruments (Laura, 2014).
Therefore, this means that the landscape has extremely changed taking into account the nature of the relationship that has to be established between physicians and patients. The clinical paternalism, that patients rely on upon guidance from physicians, has paved way to the extent of regarding patients to be independent decision-makers. It is this scenario that enables them to filter out the non-clinical and medical concerns into their medical decisions.
The Decision
The UK Supreme Court in Montgomery finally ended up rejecting the application of Bolam test to the physician’s duty of first advising the patient. Taking into account that test, it means that it was not based on the fact that the physician had acted according to the approved medical standards but on the expectations of the patient, that is what she desired to know. A person who is capable of making sound judgment is ultimately entitled to choose the form of treatment he or she wishes to undergo (Samanta, 2016). Because of that, it was logical for the physician to seek her consent before administering treatment that could otherwise interfered with her body functioning. As a result of that, it implies that doctor given the responsibility of taking reasonable care was to ensure that the patient has been informed about the underlying material risks that could involve as a result of the recommended treatment as well as that associated with variant or alternative treatments (Levene & Chervenak, 2008). Basically, in situations concerning such a case, the test of materiality mainly takes into account the fact whether a sensible person would be able to add the implication to the risk, or physician should have been reasonably, informed that the patient in question was likely to attach the significance of the test to it (Herring, 2018).
According to the law, the most significant part of this test was mainly its material consideration. The reason for that is because the same material facts are evaluated by referring to the patient in question or the reasonable person (the concerned obstetrician) who took care of the patient. According to medical review, it was found out that the shoulder dystocia risks was she had ranged between 9-10% implying that that could have caused serious injury to her baby was perceived to be 0.1%. This means that whether such a risk was material it could not have been an issue of percentages. The reason for that is because all that will have to rely on the effect that the same risk have on the life of the patient, the manner in such a treatment benefits the patient, alternatives as well as other risks that might evolve from the same alternatives. Depending on the characteristics of the patient, it means that such reasoning is fact-sensitive (Karen, 2017). Therefore, it was found out that a risk of 0.1% was extremely low to be perceived material.
This then means that the advisory responsibility of the concerned physician cannot be assumed to be an exercise of material proficiency. This is because the physician will only have the potential of understanding all that is material to the particular patient through talking as well as listening to her opinions. What is material can either be termed as being medical or not. As a result of that, there are three main exceptions concerning this rule (Claudia, 2015). The first exceptions dealt with a situation where the particular patient informs the physician that she does not desire to be advised about the risks involved. The second one takes into consideration the treatment exception, that is id the general disclosure of the associated risk it found to be harmful to the health of the patient. The last one is necessity, for example, when it comes to the situation demanding immediate treatment for unconscious patients. Regardless of that, it should be kept in mind that these exceptions ought to be narrowly regarded so as not to be abused (Claudia, 2015).
Therefore, taking into account the details of obtained from the case of Ms Montgomery, it means that she had the right of seeking medical advice concerning the risk of shoulder dystocia. The reason for that is because it is the one that could have given her the opportunity of making personal decisions concerning the risks that she could have to endure at the end of the day. Later the court found out that if she could have been advised properly, she could have accepted to deliver her baby using the caesarean method. The damages made were valued at £ 5.25 million.
Implications
The court had no option but to reject the paternalistic and medical-centered approach to that consent. Since the same test is perceived to be what a reasonable body of physicians could advise, it means that it important to consider using a test whose standards are based on the prevailing practices of the clinical profession. Ideally, such a test have been currently substituted with one which considers patients as being individuals who have the potential of making personal decisions that are based on both clinical and non-clinical considerations (Birju, 2014). The acknowledgement that non-clinical factors might be essential to a particular patient is significant just because there are some factors a physician will not know unless he or she has discussed with the patient. Therefore, it implies that the autonomy of the patient is what has extensively substituted paternalism. This is an important shift in law since it aid in reflecting changes in the modern healthcare culture (Claudia, 2015).
Nonetheless, there are several considerable implications for National Hospital Services and hospital practitioners. The first one is seeking consent should be perceived as a mechanism through which the patient is given the opportunity of playing a greater role. It is crucial for medical practitioners to ensure they have dedicated enough time in finding out all that is material to the patient concerned. Furthermore, it is important to ensure that the patient has been informed about the significance of the prevailing condition, the predictable advantages of the anticipated treatment as well as other alternatives (Strong & Williams, 2011). Despite that, it is the responsibility of doctors to the patient has understood other matters of greater importance, including the quality of life of the patient, the general impact or impacts of they have on appearance and on the values of the patient. This will require engaging in proper dialogue so as to enable her to assess the impacts that the medical attention to be given have on those factors (Dominic et al., 2008).
As a result of that, taking consent should not only be a subject of running swiftly through a normal form shortly before operation. Such a procedure will have to be conducted at an appropriate. This is to imply that when it comes to conducting elective procedures, this will have to be conducted earlier before real admission of the treatment, maybe during pre-operative review. For instance, it is difficult to recognize the manner in which focused patient decisions are established when he or she could have already made emotional commitment to the recommended procedure, arranging traveling time, and post-operative procedure (Laura, 2014). Since the decision could have already been made, it is will be the duty of the physician to go on with the procedure. This means that some of the tasks delegated to junior doctors will have to be postponed first. Furthermore, consent will have to be fully recorded and in case standard forms are to be utilized it is important to look for an extra space to aid in recording detailed discussion. In recording standard benefits and risks, the doctor will have to ensure that such a written record have had the ability of reflecting the priorities of the patient (Imogen & Jonathan, 2018).
The second implication suggests that consultations in which discussion for treatment is based on should often be lengthy. In most cases, the type of discussion needed by the Supreme Court in Montgomery takes a lot of time. The implication for that is that it will result into stretched NHS materials or resources. In this scenario, it is evident that what the Supreme Court ended up considering are some of the potential objections from the health care profession. One of it is that there was no enough time to maintain lengthy discussion during consultation. Uncompromisingly, this view assisted in ascertaining that it is important for doctors to respect patients’ dignity (Peter, 2013).
The third implication is that it is possible for medical institutions to be in a situation in which it is the patients who vote for costly medical treatment. Such patients could end up expressing preferences for extra examinations or for medical attention that could have been approved by physicians so as to costly constrains. An apparent example of such a treatment is the caesarean sections. The main concern of the obstetrician who attended Ms Montgomery was that in case she informed diabetic patients about the dangers associated with shoulder dystocia and the minute brain injury the baby could have got, it could be possible for them to vote for caesarean sections (Birju, 2014). Although that physician could have exaggerated, the probability is that she was right that it could have resulted to a significant increase. Since the hearing of the Ms Montgomery’s case, several other cases erupted. Moreover, in those cases, the plaintiff claimed that they could have voted for caesarean sections in case they could have been informed that the treatment to be provided by the hospital was inadequate. Therefore, such a decision might as well end up increasing costs for the prolonged NHS service (Karen, 2017).
The fourth implication is that at times physicians are required to be more aware about the need of first consulting their patients in case the anticipated risks changes during the treatment. But in reality, it implies that is alteration in the law in such a situation. Physicians, however, need to keep in mind that the need for obtaining patient’s consent is a continuous exercise and when it comes to changing situations it might not be easy (Jackson, 2018). For instance, in the Barths Health NHS Trust versus Tasmin the plaintiff claimed it case the CTG was abnormal, it could have been important for the hospital to offer her a caesarian section as the alternative means for sampling the foetal blood. Unfortunately, the court ended up rejecting this allegation because the doctor did not have enough information for advising her unless the foetal blood sample was obtained. The obstetrics of the plaintiff commented by stating the requirements of the modern law are changing with time. Labor is one of the dynamic processes that a woman undergoes. As a result of that it is not logical to have lengthy discussion with the patient as the risks will keep on changing during the discussion (Ellershaw & Wilkinson, 2011).
It, therefore, means that it is the autonomy of the patient that has taken the center stage of the patient-doctor relationship. Consumerism is one factor that is considered to be the less attractive part of the patient’s autonomy. The reason for that is because autonomy is perceived to have the ability of respecting the rights of the patient to be informed properly and make personal decisions. Another primary emphasis of consumerism is patient choice. It is the choice of consumers to use their money to purchase commodities and/or services as they desire or wish (Patrick & Henrik, 2018). Conversely, from the perspectives of NHS healthcare, obviously it will not be their resource (money) they are utilizing. Ultimately, the choices they make are financed by limited resources that are used for the purpose of responding to the needs of the whole population. This then means that uncontrolled consumerism risks offer a person a high degree of preference that would end up prejudicing the interests of their community. Ideally, one of the existing challenges will entail finding a principled autonomy that will have the ability of balancing individual rights with the duty of recognizing the needs of other people (Elizabeth, 2014). It demands the need of recognizing the limited nature of National Health Service (NHS) resources as well as the fact that it is possible to encounter more justifiable claims from other patients to limited resources.
Conclusion
In case consumerism is perceived to be the downside of patient’s autonomy, it implies that social welfare will become the upside of paternalism. Traditionally, the National Hospital Service (NHS) was established on the foundation of principles of community welfare. Despite that, it has been changing into an extent of becoming a better consumer based means of improving healthcare. Ultimately, there should be a balance between community welfare and autonomy. It has been realized that there are other services that the community healthcare system cannot manage to provide because of the existing finite resources For example, one of the main responsibilities of National Institute for Health and Care Excellence (NICE) entails assessing the advantages of drugs in relative to cost. Likewise, the same principle concerning the need of balancing benefits and balancing costs will also be applicable in other forms of treatment despite of the wishes of the patient.
With years to come testing the extent at which the autonomy of the patient paves way to community welfare is one area of concern. The blunt statement that was made by Lady Hale that the healthcare profession ought to respect the choice of the patient unless she does not have a legal capacity to make personal decision is completely true in relation the delivery of Ms Montgomery. The reason for that is because some medical examinations and treatments a particular patient will demand but difficult to have. As far this case is concerned, it implies that Montgomery aid in representing one of the main landmarks in the law that reinforces the rights of the patient over the medical treatment they want. It is also an important challenge to both the modern healthcare profession and the National Hospital Services.
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