Medical law in England has traditionally relied on the concept of a “prudent doctor standard” in determining the standard of care expected of doctors in diagnosing and treating patients. This standard holds that doctors should follow a practice accepted as proper by a responsible body of medical professionals.
However, in 2015, the landmark decision in Montgomery v. Lanarkshire Health Board marked a significant legal shift in which the “reasonable patient” standard was introduced. This standard holds doctors liable for ensuring that their patients are aware of any material risks associated with recommended treatments and any reasonable alternative treatments. This shift reflects a heightened emphasis on doctor-patient dialogues in contemporary healthcare and moves away from doctor-centric medical paternalism.
In a recent research published in BMC Medical Ethics, experts discussed the legal implications of the Montgomery standard, which requires doctors to obtain informed consent from their patients before any medical procedures are undertaken. The Montgomery standard emerged after a landmark legal case in the UK, where a woman claimed that her doctor failed to inform her of the risk of shoulder dystocia during vaginal birth, resulting in severe disability for her baby.
The Montgomery standard is based on the idea that patients should be more active in their medical treatment, with doctors required to inform them of any material risks associated with the procedure. This standard has been widely adopted in Australia, Canada, and the United States and is expected to become more widely accepted globally.
While the Montgomery standard is intended to advance patients’ autonomy, safety, and consumer rights, the review identified three practical challenges doctors face when implementing this standard. These challenges were explored through hypothetical thought experiments that represented realistic clinical encounters.
The first challenge was that doctors might face increased legal risks under the Montgomery standard, as patients could sue them for not disclosing material risks associated with the procedure. This could lead to a culture of defensive medicine, where doctors disclose all risks, regardless of their likelihood or severity, to avoid legal liability.
The article discusses the complexities of material risk disclosure in the context of medical treatment. It highlights a case where a patient’s desire to have children despite his old age triggers the materiality of the risk of infertility, which falls under the first category of material risks. However, the article notes that it would be unfair to hold the surgeon liable for failing to disclose the risk, as the doctor was unaware of it.
The study also discusses the scope of exceptions to the general requirement of material risk disclosure. It mentions two exceptions: waiver and therapeutic exception. The waiver exception applies when patients clarify that they do not want to discuss the matter. At the same time, the therapeutic exception applies when a doctor reasonably considers that a risk disclosure would be seriously detrimental to the patient’s health.
While some judges in the Commonwealth are beginning to realize the limits of the material risk disclosure requirement, there have been unsystematic and uneven attempts in the UK to water down the Montgomery case. The article suggests that it remains to be seen whether the English version of the reasonable patient standard will give due recognition to real-world constraints on medical practice without excusing preventable harm.
Overall, the research suggests that while patients should actively make prudent choices for themselves, judges may not be the best authority to judge the nuances of medical practice, and the reasonable patient standard may need to be re-evaluated to account for the complexities of medical practice.
