Explaining treatment options and risks post-Montgomery

Johnstone v NHS Grampian [2019] CSOH 90

In the Scottish case of Johnstone v NHS Grampian, the Court of Session found that the pursuer’s consent to medical treatment had been given on the basis of sufficient information about the alternative treatments available and the potential risks of treatment so as to be ‘Montgomery compliant’. In particular, the case examined how the option of ‘doing nothing’ and how the reasonableness of that option should be determined, in the context of Montgomery v Lanarkshire Health Board [2015].

The case highlights the importance of detailed and accurate record-keeping when obtaining a patient’s consent.

Background

The pursuer, Mr Johnstone, underwent transsphenoidal surgery in 2011 to remove a growth of tissue on the pituitary fossa. He suffered a post-operative leak of cerebrospinal fluid, causing a number of medical problems and the prospect of life-long medication.

Whilst the pursuer was unhappy with the outcome, no claim was made as to the adequacy of the surgery itself. Instead, his case focussed entirely on whether he had given valid consent. The pursuer alleged that his consent to the operation had not been given on the basis of sufficient information asserting that he was:

  1. Told virtually nothing about the risks of the transsphenoidal surgery.
  2. Told nothing about the benefits and risks of the alternative treatment of radiosurgery.
  3. Not told that he could opt not to undergo either surgery.

As such, the pursuer argued that the doctors had breached the test set out in Montgomery.  

The defenders argued that full or at least adequate information was given about all these matters.

The court heard evidence from the pursuer, his family and the treating clinicians to determine what the pursuer was told prior to surgery. In addition, expert evidence was heard from both sides on the treatment options and the risks that ought to have been explained to the pursuer.

Decision

The defenders referred to the contemporaneous note of the treating surgeon’s consultation which explained, amongst other things, the advantages and disadvantages of the treatment options, as well as the risks of transsphenoidal surgery. The note was silent as to whether the option of ‘doing nothing’ was discussed. However, both doctors involved in obtaining the pursuer’s consent gave evidence to the effect that that option had been discussed.

Relying upon the note of the consultation, the court preferred the evidence of the treating surgeon and held that the risks of the operation and the availability of other options explained by the treating surgeon were ‘Montgomery compliant’. The option of ‘doing nothing’ had been mentioned to the pursuer, but in any case, was not a reasonable treatment option based on the doctors’ diagnosis that active treatment was required. The doctors could not therefore be criticised for failing to encourage the pursuer to go down the route of ‘doing nothing’. In addition, and in any event, the pursuer did not attack the diagnosis on the basis of a breach of Hunter v Hanley [1955] (the Scottish equivalent of the Bolam test)

Comment

In the earlier case of AH v Greater Glasgow Health Board and others [2018], the defenders (the clinicians) argued that identifying the reasonable treatment options remained a matter to be tested by Hunter v Hanley in that a patient would need to show that no ordinarily competent clinician, exercising ordinary skill and care would have failed to offer that option. Lord Boyd agreed, holding that decisions about diagnosis, treatment and treatment options fall to be considered by the medical practitioner; and therefore any breach of duty should be considered by reference to Hunter v Hanley. The ‘innovation’ provided by Montgomery was therefore limited to the question of which risks should be disclosed to the patient.

The defenders advanced a similar argument in Johnstone - accepting that the doctors’ duty was “to take reasonable care to inform the patient of the material risks involved in the recommended treatment and of any reasonable alternative or variant treatments” (the Montgomery test);  but that ‘breach’ was to be judged by reference to Hunter v Hanley.

The court followed that approach, deciding that the treatment options offered were reasonable based on the diagnosis; and since that diagnosis had not been challenged with reference to Hunter v Hanley, the case on a failure to advise of ‘no treatment’ could not succeed. Disappointingly, the court did not analyse in any detail, why the risks explained to the pursuer were ‘Montgomery compliant’.

The decision is perhaps a missed opportunity to provide some further judicial analysis of the interplay between the Montgomery and Hunter v Hanley tests. Nevertheless, it reinforces the importance of accurate and detailed records in any litigation examining the validity of the consent process.

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