Debbie Milne | Partner and Solicitor Advocate

Informed Consent in a Post Montgomery World

In 2015 the UK Supreme Court issued a decision in the case of Montgomery v Lanarkshire Health Board which radically changed the law in the UK relating to the giving of consent for medical treatment.

Before Montgomery the test for whether a clinician was guilty of professional negligence in providing information to a patient before they gave consent to treatment was the traditional Hunter v Hanley test for negligence. In short, if the information provided to the patient was the information which an ordinarily competent clinician would have provided in the circumstances there would be no negligence in relation to the obtaining of consent. Following Mrs Montgomery’s case the approach is now that the courts have to consider what the reasonable patient would have wished to know in the circumstances.

However, even where a patient can show that the information provided to them by a clinician falls short of the new Montgomery standard they still require to persuade the court that had they been provided with all of the information they say they should have been given, they would have made a different decision in relation to their treatment. While the patient will approach the question of whether they would have gone ahead with a particular treatment with the benefit of hindsight, the courts require to consider what would have happened had the patient been properly advised at the time consent to treatment that was given. The unreported decision of Sheriff Collins in the case of Iain Britten v Tayside Health Board in 2016 provides useful guidance to lawyers of the way the courts are likely to approach that question.

The Britten Case

Mr Britten suffered from bipolar disorder. His condition had been stable for eight years. In 2001 he suffered pain, photophobia and inflammation in his left eye. He was successfully treated with topical steroid eye drops. In February 2003 he had a recurrence of the same symptoms and was again successfully treated with topical steroid eye drops. In January 2005, he experienced further problems. Topical steroids were not an option. There were two possible means of treatment. One was to treat with oral steroids which was the standard recommended treatment for his condition. This treatment was likely to effectively resolve the condition and preserve his sight. However, there was a recognised risk of adverse psychiatric events which could occur in five to fifteen percent of cases. Mr Britten’s history of bipolar disorder and the fact he was taking lithium to regulate this did not make treatment by oral steroids inappropriate. The alternative treatment was by steroid injection. This was thought to carry a lower risk of triggering an adverse psychiatric event in taking oral steroids. However, this procedure carried other serious risks.

Mr Britten was not given the option of treatment by steroid injection and was not advised of the relative risks or benefits between the two treatments. He took the oral steroids and suffered a relapse of his psychiatric condition requiring admission to hospital. The relapse was caused by the oral steroids received.

However, he was unsuccessful in his action because the sheriff held that had he been told treatment by steroid injection was available as an alternative and had the potential risks and benefits of these two treatments been fully explained he would still have chosen treatment by way of oral steroids. The sheriff reached that conclusion based on the evidence of medical experts and also the evidence of the pursuer to determine whether a person in Mr Britten’s position might reasonably have consented to the steroid injection. Notwithstanding Mr Britten’s clear assertion (informed by hindsight) that he would have opted for the injection the other evidence suggested otherwise.

Mr Britten’s case demonstrates a sensible approach to the question of what a patient would have done in making an informed decision. While the courts will clearly have regard to the nature of the patient and what they say they would have done, they will also have regard to what medical experts say a reasonable patient in their experience would do in the circumstances.

Contact our Medical Negligence Solicitors Glasgow

Jackson Boyd are highly experienced in the medical negligence field. This means we are in an ideal position to assist you, whatever the circumstances of your case. We will always ensure your claim has the best chance of success by investigating medical reports, gathering witness statements, and exploring any other evidence which we believe with allow you to claim maximum compensation. Jackson Boyd have a proven commitment to providing our customers with the best possible services and results and have been helping people from across Scotland for over twenty years. We specialise in dealing with contentious litigation in the areas of road traffic lawpersonal injuryemployment law and dispute resolution. To speak to our team of highly experienced solicitors, get in touch today via our online contact form, or telephone us on 01412496903.

Debbie Milne

Debbie Milne

Personal Injury Team

“The best part of my job is achieving a result that makes the client happy. That might be getting a good result for an insurer, it might be recovering a sum in damages that makes a difference to a person’s life, it might even be simply achieving an acknowledgement that the other party was at fault.” 

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