Montgomery Ruling
Background
In March 2015, the UK Supreme Court delivered its landmark judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11, fundamentally changing the law surrounding informed consent.
Mrs Nadine Montgomery, who was of short stature and had gestational diabetes, was receiving maternity care. These factors increased the likelihood of delivering a larger baby and therefore increased the risk of shoulder dystocia during vaginal birth. However, she was not informed of this material risk, nor was she offered the reasonable alternative of an elective caesarean section.
During labour, shoulder dystocia occurred, resulting in her son sustaining severe complications. The Supreme Court found that the doctor had been negligent because Mrs Montgomery had not been provided with sufficient information to make an informed decision about her care.
The Bolam Test
Before the Montgomery judgment, consent was largely guided by the Bolam test, which originated from Bolam v Friern Hospital Management Committee (1957).
The Bolam principle stated that a doctor would not be considered negligent if their actions were supported by a responsible body of medical opinion, even if other clinicians would have acted differently. In practice, this meant that decisions about what information to disclose were largely determined by the medical profession.
Changes to consent
The Montgomery ruling shifted consent from a clinician-centred approach to a patient-centred one.
Healthcare professionals are now expected to take reasonable care to ensure that patients are aware of:
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Any material risks associated with the proposed treatment or procedure.
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Any reasonable alternative or variant treatments, including the option of no treatment where appropriate.
This enables patients to make informed decisions based on their own values, priorities, and circumstances, rather than solely on what a clinician believes is important.
Material Risk
The Supreme Court defined a material risk as follows:
"The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
The test of materiality is whether, in the circumstances of the particular case, 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."
Montgomery v Lanarkshire Health Board [2015] UKSC 11, paragraph 87.
A material risk is not determined solely by how common or rare it is. Even a very uncommon complication may be material if a reasonable person in the patient's circumstances would consider it significant, or if the clinician knows that the individual patient would attach particular importance to that risk.
Patients' Right Not to Know
Patients also have the right to decline detailed information about the risks of a procedure if they choose. However, this decision should itself be informed and documented, ensuring that the patient understands they are choosing not to receive further information before consenting to treatment.