A common law right to autonomy of treatment

Montgomery v Lanarkshire [2015] is a landmark judgment affecting the surgeon/patient relationship. The Supreme Court held that patients have the right to exercise autonomy over their own bodies and over the treatment they undergo. When making treatment choices it is the surgeon’s duty to advise and the patient’s right to decide. This right of autonomy over treatment is a common law right. It does not come from the European Convention on Human Rights but has been created by British judges in cases beginning with Sidaway [1985]. In Montgomery the Supreme Court gave it a final and very decisive stamp of approval. The Court held:

"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo … The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

The Royal College of Surgeon’s recent publication: Consent: Supported Decision-Making – A Guide to Good Practice, offers detailed and practical guidance on the implications of Montgomery and how surgeons should protect patients’ rights to autonomy.

The well-known Bolam test continues to apply to the delivery of treatment but the Courts take a different approach when scrutinising the process of obtaining informed consent.

The patient’s right to autonomy

Important though this right to autonomy is, there are certain qualifications:

• The surgeon only has to give information about the reasonable treatments available. Financial restraints may limit the available range of treatments and a surgeon is not obliged to explain the risks and benefits of all possible treatments, however unreasonable or irrational.
• Only adult patients with the capacity to make decisions about their own treatment can exercise this right of autonomy.
• In situations, such as emergencies, when it is not possible to obtain a patient’s informed consent it may be necessary for a surgeon to make treatment decisions.
• In very rare cases, the “therapeutic exception” may apply such that a surgeon need not divulge information to a patient if to do so would be seriously detrimental to them.
• Patients may still ask, “What would you do, doctor?” If a patient makes a clear choice to follow a surgeon’s recommendation and not to be informed of the risks and benefits of alternative treatments, that is an exercise of autonomy.

Although the Court’s decision reflected guidance on informed consent given by the General Medical Council (GMC) for a number of years, concerns have been raised about its impact on consultation times and a rise in litigation.

Consultation times

If, as likely, more time is spent with patients, that is a price worth paying to protect the right of autonomy. The unpalatable alternative is that patients have treatment decisions made for them.

Hospital managers must allow sufficient time and resources for advice properly to be given and recorded. The current standard consent form is poor evidence of a full discussion and consent process. A better recording system is required. Smart use of written or filmed advice issued prior to consultations can assist.

Litigation

If adequate resources are allocated and surgeons follow the College’s guidance, there ought to be a reduction in litigation. With the right of autonomy comes the responsibility on a fully informed patient to live with the consequences of their decisions. Many patients instruct solicitors because they feel they have been kept in the dark. Patients who have been fully informed and empowered to choose a particular treatment are more likely to accept complications when they arise.

If surgeons and managers do not change from the old ways to the new, then patients who would have avoided harm had they been fully informed may well seek compensation.

The Supreme Court has laid down the law: doctors advise, patients decide. This is the new contract. All healthcare professionals and managers, not just surgeons, should heed the College’s Good Practice Guide.

Nigel Poole QC of Kings Chambers had been a clinical negligence specialist for over 25 years. He is the author of Learned Friend, a blog devoted to clinical negligence. He has appeared in cases in the Court of Appeal and the Supreme Court. He sits as a Recorder and a Chair of the Bar Adjudication and Tribunal Service.