Update on the UK law on consent

Dr Freudenthal asks if the Montgomery ruling has opened the floodgates for the courts rejecting the Bolam test in other areas. The Bolam test, with the Bolitho qualification, will continue to apply to determine the liability of acts and decisions based on medical expertise (and indeed in other areas too, such as accountancy, architecture, engineering, law, and so on).

The Bolam test would be applied – and will continue to be so - to determine whether a doctor was negligent in, say, proposing an embolisation procedure, and whether that procedure was competently performed. It will no longer be applied to whether the doctor should have raised the alternatives of hysterectomy or conservative management during the consent process. The dilution of Bolam over the years, culminating in Montgomery, was primarily in reference to the giving of advice, the failure to warn, and consent generally. In my view, the prognosis for Bolam is not as grim as that contemplated by Dr Freudenthal.

Dr Levine, in his rapid response, has noted the intangibility of the concept of the ‘reasonable person’. English law is full of references to ‘reasonableness’. A professional person has a duty to exercise reasonable care and skill; an occupier of premises has to take reasonable care to ensure those premises are reasonably safe to visitors; and so on. Of course there is latitude in the interpretation of ‘reasonable’. The rationale for the ‘reasonable person’ test was eloquently put by Lord MacMillan in Glasgow Corp v Muir in 1943:
‘It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from overapprehension and from over-confidence.’

This only takes us so far. A prudent practitioner will ask colleagues for their views on what a ‘reasonable person’ would do or, as here, would want to know. Dr Levine is surely right, however, when he alludes to the changing interpretations, over time, of the ‘reasonable person’. Courts - or judges - determine the meaning of ‘reasonable person’. As society changes, so too does the ‘reasonable person’. Hence the reasonable person in 2015 will differ in some respects to the reasonable person in 1915. He or she, for example, expects far more information about proposed medical interventions than before.

Sir William Osler spoke of ‘this everlasting perhaps with which we have to preface so much connected with our art.’ Uncertainty is an inherent part of clinical medicine, as well as medical law and ethics. Accepting the inevitability of some degree of uncertainty is a sign of maturity in each of those domains.

The recent landmark decision in Montgomery v Lanarkshire Health Board has re-defined legally valid, informed consent. (1) (2). Unfortunately, the ruling seems to trample on the defendants’ 'Right to a fair trial'.

The injuries due to medical negligence occurred in 1 October 1999. But a number of guidelines, books and judgments which were referenced in that ruling were published after the incident in question. It is manifestly unfair to reach a judgment on an action using material published after the event. As a non-expert, I am very perturbed and perplexed that no one seems to take notice of this glaringly obvious unfairness.

Guidelines and books published since 1999 and used in the ruling include:
1. General Medical Council booklet on ‘Good Medical Practice published in 2013.
2. GMC booklet on ‘Consent: patients and doctors making decisions together’ published in 2008.
3. Royal College of Obstetricians and Gynaecologists Guideline No 42 on Shoulder Dystocia published in 2005.
4. Principles of Medical Law, a book by Andrew Grubb, Judith Laing and Jean McHale published in 2010
5. NICE Clinical guideline ‘Caesarean section’ published in 2011.

The ruling also considered and quoted various courts judgements which were made after the incident in 1999. Examples include:

1. Jones v North West Strategic Health Authority [2010] EWHC 178 (QB)
2. Wyatt v Curtis [2003] EWCA Civ 1779
3. Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB))
4. Chester v Afshar [2005] 1 AC 134

The judgement in the Montgomery case might have been morally and ethically the right judgement but legally, one cannot expect a medical practitioner's actions to conform to guidelines and judgements published after the action.

References
1. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11. http://www.bailii.org/uk/cases/UKSC/2015/11.html

2. Sokol DK. Update on the UK law on consent. BMJ 2015;350:h1481–h1481. doi:10.1136/bmj.h1481

As Dr Lewis has 'appreciated' this discussion between Mr Goh and myself, I will respond to Mr Goh's recent piece.

Our judges in England, have in the past commented that 'informed consent' is a concept present in US law, but absent from English law: some judges have made that comment, even in recent years. I would also comment that medics usually think in terms of medical ethics first, whereas I insist that first you must work from a country's law: in particular, if there is primary legislation, you should work by reading and 'understanding' the Act in question. Judges try to avoid 'changing legislation', so unless a piece of legislative law is either unclear, or contains an internal contradiction, 'judges will not contradict the law'. And as Lady Hale's comment [which I reproduced in an earlier piece] makes clear, judges sort out the principles in their own minds, and then are forced to try and explain these principles using words (a process, which is not without its problems). And a simple phrase – ‘informed consent’ – is not enough: the logical principle beneath the words ‘informed consent’ is clear enough, but the term could be ‘operationally different’ in different countries [depending on national [varying] interpretations, by courts, etc, of ‘how much informing is satisfactory in the real world’].

The Mental Capacity Act, is an unusual piece of legislation: not only does it state that anybody caring for a mentally-incapable person must make decisions 'in the person's best interests', without any clear explanation of what 'best interests' means, but the Act also allows a person to appoint a person as his/her attorney (for decisions about treatment, this would be a 'welfare attorney') for best-interests decision making. Section 6(6) of the MCA, very clearly places a welfare attorney in charge of best-interests decision making - and most welfare attorneys, will be laymen, and therefore not 'expert' in either medical ethics or in law. It logically follows, that whatever 'best interests' means, it must be possible to deduce that, from the MCA itself - the law contained in the MCA applies to all decision-makers, and it is unreasonable to expect lay decision makers to read beyond the Act itself, while lawyers tend to argue from 'historical case law' (logically, all 'case law' prior to the MCA, would be incorporated within the Act itself when it was written). So 'read the Act' and 'understand the case law from which the Act developed’ are equivalent [except for any new law an Act introduced: for the MCA, Advance Decisions were new law]. It also follows from the ability to appoint a layman to control best-interests decision making, that for the purposes of the MCA 'laymen must be able to understand the law satisfactorily'.

But reading an Act, or understanding the case law upon which the Act was founded, is a very different approach from 'working from medical ethical concepts'.

I find, that at present the laymen who are involved in the care of mentally-incapable patients, something very common for end-of-life, are legally obliged to obey the MCA, while the professionals involved are departing from a 'neutral reading' of the Act, and imposing a very different mindset onto 'what the law is': that can't make any sense, because family carers and clinicians are both involved in end-of-life ! 'The game' has to be everyone playing football, or everyone playing rugby - it cannot sensibly be some people playing to the rules of football, and others to the rules of rugby, in the same match and on the same pitch !

Slightly off-topic (but not by much - as I have said, the MCA does include the rules for 'consent from mentally-capable patients' in section 3) I have written extensively about the MCA on the Dignity In Care website, and a PDF describing 'my analysis of the law' can be downloaded (you do not need to join the website - just click on the download link at the bottom of my article there) from the link I append.

As for 'how much must be explained during the consent discussion', the simplest answer is for whatever is explained to be recorded, and the record to be signed-off by both the clinician and the patient - that would remove these issues of uncertainty over who actually said what, and take most of the 'hindsight complications' out of things.

http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj...

The central legal issue was a failure to disclose a substantial obstetric risk. Both the Outer and Inner House, Court of Session in Scotland applied the revised Bolam test as per Bolitho[2] but accepted that non-disclosure of a 9-10% risk (which “Dr McLellan accepted that this was a high risk”[1]) was consistent with a reasonable body of medical opinion and it could withstand logical scrutiny. It appears, the Scottish Law Lords did not attach much weight to commonsense or patient autonomy either, when they accepted Dr McLellan’s reasoning that “most women will actually say, 'I'd rather have a caesarean section"; how could such a catastrophic value judgment withstand logical scrutiny as per Bolitho? How did Scottish Law Lords get it so wrong twice in 2010 and 2013 respectively? Yet, the Supreme Court delivered their judgment with customary politeness and eloquence without highlighting this abject failure of the Court of Session but makes a rather convenient attempt to blame the inappropriateness of the Bolam test in cases of consent. Even if the Bolam test is outdated in relation to consent, this is clearly a case where Scottish Law Lords repeatedly failed to apply the well known Bolam-Bolitho test properly and thus, letting down Nadine Montgomery for over a decade. Arguably, Montgomery judgment exposes the inability of the Court of Session to think outside the box and their tendency to pander to medical paternalism.
References
[1] http://www.bailii.org/uk/cases/UKSC/2015/11.html
[2] Bolitho v City and Hackney Health Authority [1998] AC 232