Contributors and sources: The authors were organisers (ET, WW, JEN) and participants (SWC, AS, ESC) of an event in the Edinburgh Medical Debates series on the ethical and legal impact of the Montgomery case.6 ET is a medical student at the University of Edinburgh and was primarily responsible for research and initial drafting of the manuscript; SWC is a researcher in bioethics and was responsible for subsequent drafting, critical revisions, ethical analysis, and part of the legal research; ESC, WW, and JEN are clinicians and were responsible for conceiving the idea for the manuscript, critical revisions, and obstetric medicolegal advice; AS is a barrister and QC in both Scotland and England, specialising in medical negligence, and was responsible for legal advice, analysis, and critical revisions. This decision followed a 16-year legal fi ght which concluded with Mrs Montgomery’s claim being upheld by the Supreme Court. The case was made that as the consultant had not discussed the risk of shoulder dystocia, the potential significant consequences of it occurring and the alternative option of a Caesarean section that negligence had occurred as far as consent is considered; Mrs Montgomery was not able to make a fully informed decision without full information on all the options. 16. One such attempt in Scotland has, so far, been unsuccessful.20 Two English cases have allowed consent claims to be added after the Montgomery decision.21 22 Some cases have succeeded on a Montgomery basis23; we (AA) understand that others have settled before litigation ever started or was concluded, as the claims were unanswerable in the light of Montgomery. She expressed general concerns throughout her antenatal care. Finally, doctors criticised the focus of patient autonomy over medical paternalism. The Bolam test was affirmed in Sidaway v Bethlem Royal Hospital Governors and others,2 although the ruling was not unanimous, with judges placing different weight on the patient’s right to make informed treatment decisions versus the doctor’s professional judgment in disclosing information. The Montgomery decision redefined the standard for informed consent and disclosure. ... We encourage you to double check our case summaries by reading the entire case. Obstetricians urgently need guidance. This would have meant that she would have had her surgery at a later date rather than choosing not to have it at all. You can also use your College Personal ID (PID) if you have one. On 2nd December her daughter was found to have died in utero. vLex Rating. She had previously had an elbow injury and spinal surgery and had been under the care of the neurosurgeon in question for many years. The doctor’s normal practice was to give ECT without a relaxant and without any physical restraints; the doctor would support the patient’s chin and shoulders while nurses stood at either side of the treatment couch to prevent the patient falling. Mrs Sidaway alleged that, in the discussion of the decompression, she was not warned of the risk of paraplegia as a complication of the procedure. In this case, the assertion that Dr Horn would not have intubated Patrick if she had been present was felt to be a logical one and, therefore, not negligent. The concept of the therapeutic exception is also mentioned as a rare occurrence when a doctor may feel that discussion of risks will result in harm or detriment to the patient’s health and wellbeing. Montgomery then claims that Bram was revived by the Supreme Court's recent decision in District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. In order to discover what may concern a patient, it is imperative that a doctor endeavours to find out what matters to each patient; a concert pianist may have different concerns regarding a hand operation when compared with someone else whose livelihood does not rely on dexterity. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) Judgment date. The case was brought by Henry Montgomery, a Louisiana inmate who challenged his sentence for the killing of an East Baton Rouge sheriff’s deputy in 1963, when Montgomery … It is in fact Lord Scarman that introduced the concept of ‘material risk’, 30 years before the Montgomery ruling. We (ESC) have noticed that a considerable proportion of cases of obstetric negligence raised since Montgomery involve consent in addition to standard complaints of substandard care. His comments also included the concept of the therapeutic exception where it would be acceptable for a doctor to withhold some information if it was felt that disclosure would harm the patient. She decided to reduce that threshold to 4 kilograms in Mrs Montgomery’s case because of her small stature. 1966). Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in hypoxic insult with consequent cerebral palsy. We have heard anecdotally that some hospitals are in the process of updating their procedures on informed consent, but few have completed this. Nadine Montgomery gave birth to her son, Sam, on 1 October 1999. In this case, Bolam lost the case as the treatment he received was found to be in keeping with the practice of other doctors. Update on the UK law on consent]. Montgomery is, of course, about informed consent: warning of risks, advising of reasonable alternative treatments and obtaining valid consent. Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in … The doctor’s role is to ensure that relevant information is presented to enable the patient to use it meaningfully. During her son’s delivery, shoulder dystocia occurred and, despite the best efforts of the obstetric team, there was a twelve minute delay between the delivery of his head and his shoulders. The particular surgery was known to have a 1-2% risk of worsening her symptoms even if performed safely and competently. Some clinicians said that retrospective application of the judgment could “open the floodgates” for claims in relation to doctors’ past actions.10 Others thought that the Montgomery ruling was unlikely to have this effect, however “excited the claimant law firms might become initially.”11 Legal opinions were reserved, describing the ruling as “the belated obituary, not the death knell, of medical paternalism.”12 Some argued that the standard imposed by the Montgomery decision merely reflected good practice as already specified by the GMC13 and would make little practical difference to clinicians.8 Nevertheless, the concern generated by the ruling might affect doctors’ behaviour and other potential cases. Lord Scarman, however, expressed a different and more patient-centred opinion but, as his was a minority view, it did not affect the overall rejection of the case. The Supreme Court of the UK announced judgment in her favour in March 2015. It was felt that if she had proceeded with the surgery at a different time then it may have been successful. Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. There can be no ‘one fits all’ approach. Montgomery a caesarean section. The test of materiality defined in the Montgomery ruling was whether “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.”1 The solicitor representing Montgomery spoke of the decision as having “modernised the law on consent and introduced a patient focused test to UK law.”16. Log in using your username or email address. Sundar S. Case based laws are turning into “emperors new clothes.”[electronic response to Sokol DK. The claimant’s argument sought to use the Montgomery ruling to ground a claim for damages for the loss of life without informed consent. Please note: your email address is provided to the journal, which may use this information for marketing purposes. The competence of the surgery itself was never in doubt. Over this time the blood flow through the umbilical cord was compromised and Sam suffered a significant hypoxic injury which resulted in brain damage and cerebral palsy. For some, Montgomery represents a defining moment in medical law … She had seen her consultant at two week’s over her due date on 27th November to request induction or a Caesarean section. Today’s patients can expect a more active and informed role in treatment decisions, with a corresponding shift in emphasis on various values, including autonomy, in medical ethics. Post navigation. If these feelings are explored and the patient genuinely wishes no information or would prefer the doctor made the decision, then discussions should be documented and treatment proceeded with if that is felt to be appropriate. The ruling does not include any specific ‘percentage cut off’ for a risk as this cannot be relied upon to identify what risks could have such an impact on a reasonable patient’s judgement. She argued that had she been warned of the risk of this happening she would have taken longer to consider and reach her decision to have the surgery. Competing interests: We have read and understood BMJ policy on declaration of interests and declare the following interests: AS represented the GMC in the Supreme Court in the Montgomery case. Although the Medical Defence Union and the Medical Protection Society have each issued statements and updated their guidance, as have some royal colleges (such as the Royal College of Surgeons), other bodies such as the GMC and the Royal College of Obstetricians and Gynaecologists (RCOG) have yet to do so. All were in agreement that there was a body of medical opinion the supported the use of ECT without relaxants and without physical restraints as it was thought these could compromise the airway or increase the chance of injury. Judgment details. . Miss Chester had the spinal surgery and suffered a worsening in her symptoms. The risk of shoulder dystocia (the baby’s anterior shoulder becoming stuck behind the mother’s pubic symphysis) occurring was not discussed and a plan was made for vaginal delivery. Medical staff performed the appropriate manoeuvres to release Sam but, during the 12-minute delay, he was deprived of oxygen and subsequently diagnosed with cerebral palsy. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. Nadine Montgomery has won a 16-year legal fight for damages for her son Sam A Lanarkshire woman whose baby suffered brain damage during birth has won a 16-year fight for £5.25m compensation. Written and curated by real attorneys at Quimbee. She has type 1 diabetes and was concerned during her pregnancy that the size of her baby might lead to difficulties with a vaginal delivery. This question is for testing whether or not you are a human visitor and to prevent automated spam submissions. If you are unable to import citations, please contact Montgomery v Lanarkshire Health Board UKSC 11 is a landmark decision, in which the UK Supreme Court has found in favour of informed consent on the part of a patient who is considering, or being advised, to undergo medical treatment. In 2012, the Supreme Court decided Miller v. Alabama, which held that a mandatory life-without-parole sentence for a juvenile violates the Eighth Amendment. Legally, consent law has been clarified and aligns with current GMC guidance, and the Montgomery test has already been applied in several cases. This would mean that a patient who asked specific questions would potentially be given more information than a patient that did not ask questions. In November 1963, more than a half century ago, Mr. Montgomery, then a 17-year-old eleventh-grade student, was arrested for the murder of a sheriff’s deputy in East Baton Rouge, Louisiana. But doctors must judge what is appropriate for each patient and how their exercise of judgment might be assessed by the courts. His opinions in this case are referred to in the Montgomery ruling. The critical limitation is that the duty is confined to material risk. Montgomery was retried. The jury returned a verdict of "guilty without capital punishment," which carried an automatic sentence of life without parole. Mr Afshar appealed to the Court of Appeal which again found in favour of Miss Chester. Justices. He began to worsen and Dr Horn was called but did not attend. When the disclosure of the risk of injury was considered, the court took the view that in failing to warn of the ‘very slight’ risk, negligence would only be shown if Bolam could prove both that no other reasonable doctors would not have warned of the risk and that if he had been warned he would not have given consent to undergo the ECT. 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