Adrian Thorp
BAOS Council Member
How and why we got to Montgomery
A breach of duty in negligence is found to exist where the defendant fails to meet the standard of care required by law. The objective test, which is also known as the reasonable man test was set out in Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, where the defendant is expected to meet the standard of a reasonable prudent person.
There are though many opportunities in law where the level of this standard of care can be raised (or lower) as the individuals have represented themselves as having more (or less) than average skills or abilities. For example a learner driver is expected to meet the same standards as a reasonable competent driver Nettleship v Weston [1971] 2 QB 691 even though not fully qualified. In comparison as in medicine or dentistry, the standard of care of the individual is increased compared with that of a reasonable person.
The initial test that became enshrined in law as the benchmark for medical negligence was ‘The Bolam Test’ Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. It was used to disclose all risks including any treatment, and a test for breach, was therefore, whether a responsible body of medical opinion would have supported the doctor’s conduct.
The drawback was that it gave legal sanctions to self-regulation for the medical profession not the courts that decided what is ‘reasonable’. It seems therefore that the medical profession was above the law.
Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 turned Bolam on its axis and it was the courts that became the final arbitrator of a medical breach. It was established that a doctor could be liable for negligence despite a body or professional opinion sanctioning their conduct when the judge was not satisfied that the opinion relied on was reasonable or responsible.
It was determined by Lord Browne-Wilkinson that the assessment of professional negligence within the court setting must always consider expert medical opinions but these must not outweigh legal principles.
Although there has been a plethora of case law on negligence, moving forward to Montgomery v Lanarkshire Health Board [2015] UKSC 11. This case gives uncertainty concerning whether the ruling has really clarified the position for both the medical profession and potential claimants.
The Courts initially rejected Montgomery’s case as evidence provided that a responsible body of medical opinion would have acted as the doctor and would not have warned of the risks. However the Supreme Court reversed the decision.
Montgomery means there is now a lengthy and meaningful discussion between doctor and patient of what amounts to ‘material risks’ including proposed treatment and alternatives giving the risks of both. The focus of material risk is determined by whether a reasonable person in the patient’s position would likely to attach significance to the risk.
Montgomery indicates what is being asked of the medical profession, is now clearly time-consuming; it is though deemed professional good practice.
There are reservations whether Montgomery has provided a new position or whether it merely confirms how the case law has progressed incrementally since Bolam. There is certainly a move towards the ‘reasonable patient’ being at the heart of the standards to apply rather than the standard being that of the reasonable doctor.
There are areas for discussion in Montgomery, as Lords Kerr and Reed during their judgment stated that material risks couldn’t be reduced to percentages as the significance of risk was determined by other variables as well as the magnitude of risk and would be different to all patients. Percentages though do form an integral part of risk assessment in medicine and therefore consideration must be given to these when talking to patient about inherent risks.
Clearly though, the judgment in Montgomery does reinforce that doctors should participate in a meaningful dialogue with each patient, and the their duty goes beyond mere provision of information.