Critically analyse the evolution of the test for breach of duty in consent cases since the case of Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871 including analysis of the extent to which the Supreme Court decision in the case of Montgomery v Lanarkshire Health Board [2015] YKSC 11 has transformed the test for breach of duty.
Consent is a core principle of medical law, entwined in the debate surrounding paternalism and bodily autonomy. Justice Cardozo of the New York Supreme Court summarised the importance of consent thusly: ‘every human being of adult years and sound mind has a right to determine what shall be done with his body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages’. While there exist the criminal offence of battery and the tortious offence of trespass to person in regards to acting without the consent of patients, this essay will focus on the tort of negligence, specifically breach of duty through failing to disclose information regarding potential risks, with that patient then suffering some form of injury. Within this essay an explanation of the law regarding breach of duty following Sidaway will be given, the conflict between the ideas of paternalism and autonomy throughout the law’s evolution outlined, and a particular emphasis placed on the impact the Montgomery case has had on the test for breach of duty, in order to argue that, following Montgomery, the test has transformed to catch up with the changing sociological attitudes that have developed since the Sidaway ruling.
For a claim of negligence to succeed, three elements must be proven: existence of a duty of care, breach of that duty, and causation. The existence of a duty of care between doctor and patient is well established, with the duty to inform a constituent element. This duty is integral to the issue of consent as failure to alert a patient to potential risks of medical treatment is tantamount to them being unable to exercise autonomy in weighing the various risks of a course of action and coming to their own decision regarding treatment.
Originally the test for breach of duty was the same as in non-consent cases, that being the ‘Bolamtest’. Justice McNair described the rule thusly: there will be no negligence where a doctor ‘has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’ and the existence of ‘a body of opinion that takes a contrary view’ would not lead to negligence provided some responsible body of opinion did accept the practice as proper. This was applied both to administration of the treatment and the failure to warn the patient about risks involved.
Sidaway saw this position re-enforced, with the House of Lords re-affirming the Bolam test when it came to the duty to inform. In his judgement, Lord Diplock argued that there was ‘no convincing reason’ for dissecting the duty of care owed by a doctor into different elements, with a different test for disclosing risk, stating that Bolam lays down a principle that ‘is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient’; the decision as to which risks are worthy of being disclosed by the doctor to the patient were ‘as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care’.
Lord Scarman disagreed with the application of the Bolam test. In his view, the decision as to whether a failure to inform a patient about the risks of treatment constituted a breach of a doctor’s duty of care should not be determined ‘by reference to the current state of responsible and competent professional opinion and practice at the time’ but by ‘whether the doctor […] gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes’. The contentious issue in Lord Scarman’s view was whether it was appropriate for the medical field to determine ‘in what circumstances a duty arises requiring the doctor to warn his patient of the risks inherent in the treatment which he proposes’, to which he concluded ‘the courts should not allow medical opinion as to what is best for the patient to override the patient's right to decide for himself whether he will submit to the treatment offered him’. His suggestion was to adopt the approach of Canada and the United States in creating a ‘prudent patient’ test, wherein the doctor ought to inform the patient of all that a reasonable, prudent patient would want to know. Lord Scarman was, therefore, placing the patient’s right to be properly informed of material risks, and thereby be able to exercise their autonomy, at the forefront of his test for breach of duty, rejecting the paternalistic attitude, present in Lord Diplock’s view, of the medical profession deciding which risks warrant disclosing.
Lord Bridge took a similar view to Lord Diplock in rejecting the ‘prudent patient’ test advocated by Lord Scarman, however sympathised with the idea of not ‘[handing] over to the medical profession the entire question of the scope of the duty of disclosure’. In Lord Bridge’s view, there may be circumstances where a judge may determine that disclosure of a risk was ‘so obviously necessary to an informed choice on the part of the patient’ that failure to disclose such a ‘substantial risk’ should result in breach of duty.
Since Sidaway there have been successive cases that have adopted an approach that drifts away from the paternalism of Bolam. The first of these is Bolitho, in which Lord Browne-Wilkinson qualified the Bolam test as requiring that the professional opinion being relied on must be ‘capable of withstanding logical analysis’. Though clear that he was not ‘considering questions of disclosure of risk’, but rather the diagnosis and treatment elements of a doctor’s duty of care, it is indicative of the emerging attitude of the courts towards challenging the judgement of the medical profession, and a shift away from the ideas of paternalism.
Pearce represents the next significant change to the law. In this instance, Lord Woolf explained that where there was a significant risk that would ‘affect the judgement of the reasonable patient’ then it is the responsibility of the doctor ‘to inform the patient of that significant risk’ where that information was required for the patient to ‘determine for [himself] as to what course of action [he] should adopt’. What was established through Lord Woolf’s dicta is reminiscent of the ‘prudent patient’ test advocated by Lord Scarman in that it is demanding of a doctor the disclosure of all information a ‘reasonable patient’ would need to decide on a course of action, and so appears very pro-autonomy, however there are elements of Lord Bridge’s more measured approach through restricting this to significant risks, making it an exception to the Sidaway ruling rather than overruling it. Such a restriction leaves elements of paternalism as it is still left to the judgement of medical professionals, and not the patient, as to whether a risk amounts to being ‘significant’ or not; a Judge would still be relying on a body of medical opinion in order to determine whether a risk was ‘significant’. Despite that, the decision by Lord Woolf to read Lord Bridge’s qualification to the Bolam test in such a way brought the law considerably closer to Lord Scarman’s ‘prudent patient’ test, and represents a significant pro-claimant judgement.
Pearce was followed by two significant cases that offered commentary on the law through obiter comments. In Wyatt v Curtis, Lord Justice Sedley took the view that Lord Woolf’s ‘formulation [refined] Lord Bridge’s test by recognising that what is substantial’ in terms of risk is something ‘on which the doctor’s and the patient’s perception may differ’, and presented an interpretation that was more open to the subjectivity of perceptions of risk. Though not binding, this interpretation allows the determination of what constitutes a significant risk to be assessed from the patient’s point of view, and not the doctor’s, thereby dealing with the paternalistic element of the Pearce ruling. The second case is Chester, which saw the claimant compensated not for physical harm suffered, but for ‘the autonomy she had lost’ in not being properly informed, with Lord Steyn declaring that ‘in modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of the surgery’. Lord Walker agreed, stating that since Sidaway ‘the importance of personal autonomy has been more and more widely recognised’.
Despite the rejection of paternalism since the Sidaway ruling, both in judgements and obiter comments, it was not until Montgomery that the law itself changed to properly accommodate those sentiments; whereas successive case law had incrementally drifted from paternalism, Montgomery represents practice catching up with principle. Lords Reed and Kerr recognised that following the shift towards the concept of patient autonomy, both in judicial opinion and in healthcare practice, the law no longer reflected the doctor-patient relationship that had come to exist; patients had come to be viewed as not only having rights, but acting as consumers in their capacity to exercise their autonomy through ‘choosing’ the treatment they receive within an increasingly commercial healthcare environment. This changing relationship had been recognised by the General Medical Council in their 2008 and 2013 guidance, in which they advise doctors to ‘work in partnership with their patients’ through listening and responding to their concerns and providing all information which ‘they want or need’, respecting their ‘right to reach decisions with you about their treatment and care’. A further key development in the autonomy-paternalism debate came through the passing of the Human Rights Act and subsequent case law regarding Article 8 and the right to a private life; cases such as Glass v United Kingdom demonstrated the European Court of Human Rights treating failure to involve the patient in the decision-making process and gain their consent as breaching that patient’s convention rights, a fact referenced in Montgomery itself.
Given the recognition of the unsatisfactory state of the law represented by Sidaway and Pearce, and the changing social and legal attitudes away from paternalism, the Supreme Court created a new test for breach of duty in consent cases: a doctor has the duty to ‘to ensure that the patient is aware of any material risks involved in any recommended treatment’, including ‘any reasonable alternative or variant treatments’ available. In determining what constitutes a ‘material risk’, the standard is whether ‘a reasonable person in the patient’s position would be likely to attach significance to the risk’, or whether the doctor should have been ‘reasonably […] aware that the particular patient would be likely to attach significance to it’’.
There are interesting points to highlight regarding this ruling. The first is the court adopting the standard of the ‘particular patient’, rather than the ‘reasonable patient’ of Pearce, or the ‘prudent patient’ of Lord Scarman’s test in Sidaway. This is an important development in the law as it recognises that what a patient may require in terms of information is ‘inherently subjective’, and so an objective test may not have granted patients that information which they may have required to exercise their autonomy and make an informed choice. As a result of this, a doctor may no longer ‘hide behind a practice of responsible doctors when it is suggested they have failed to advise’ as it is not a question for the medical profession to determine what risk any particular patient, as opposed to a ‘reasonable’ one, would attach significance to; the past system of justifying failure to inform through using percentages to assess risk exists no longer. This promotion of autonomy also manifests itself in there being no duty for a doctor to disclose any risks the patient expressly chooses not to be informed of. Though a pro-autonomy ruling, there remains the principle of therapeutic privilege however, which allows the doctor to take a paternalistic action in not disclosing a particular risk where ‘it would be detrimental to the health of [the] patient’. In practice however, there appears a ‘presumption in favour of disclosure’ and a ‘general reluctance to withhold information’.
To conclude, the law on breach of duty in consent cases has developed incrementally since Sidaway to adapt to the changing attitudes of both the judiciary and the medical profession itself. Whereas once what constituted ‘substantial risk’ was determined according to the paternalistic view of the medical profession, Montgomery has shifted that determination away form the view of the doctor and toward the perspective of individual patients themselves, in line with the obiter comments present in Wyatt and Chester, and the exception to the Bolam test established in Pearce. Though paternalistic elements still remain through the existence of therapeutic privilege, Montgomery represents the law catching up with the culmination of twenty years of attitudinal change and the emergence of autonomy as the dominant force in medical jurisprudence.
