The recent British case of Montgomery v Lanarkshire Health Board  has focused international attention on one of the most important aspects of providing information to patients before medical procedures: what do patients need to know, and what do doctors need to tell them?
The Montgomery case involved a child born with developmental disabilities following a labour complicated by shoulder dystocia. His mother (who has insulin dependent diabetes mellitus) argued that she would have opted for a caesarean section had she been made aware of the possibility of shoulder dystocia. Her obstetrician is reported as having decided that - although the risk of dystocia was considered to be 9-10% in this woman - the potential for subsequent harm was very small and that mentioning the possibility of dystocia to the mother may have encouraged her to request an elective caesarean section. The obstetrician had judged an elective caesarean as not being in the patient’s best interests. Doctors do have the right to withhold information they genuinely believe would lead the patient to make an inappropriate decision (under the principle of “therapeutic exception”) but it is a restrictive strategy to be used with extreme caution.
The medical profession’s role in judging what an individual patient should know about their procedure has been debated for some time. The 1992 Rogers v Whitaker case in Australia (where an ophthalmologist “failed to warn” a patient who was already blind in one eye that a cosmetic procedure on it carried a tiny risk of complete loss of vision in the other through sympathetic ophthalmia, with that result) joins this recent Montgomery case in challenging the Bolam principle that a doctor need only warn patients of risks that their professional peer group would consider needed to be explained. The correct test is actually whether the doctor has adequately explained the risks to which a reasonable person in the patient’s position would be likely to attach significance. This is not to say that Bolam is out the door - the professional peer group is still the expert arbiter of best clinical practice, but the patient is their own judge of what information satisfies their needs.
Montgomery states that doctors must explain what’s important and what a reasonable patient would want to know. As the UK Supreme Court explained in its judgement:
“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 alternatives or variant treatments.
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 good news is that, in both the British and Australian cases, the courts have pointed doctors in a direction that most want to go. The courts have said that we must use the information we provide to share decision-making with the patient, and that resonates with modern medical practice. While we still need to make our best clinical judgment about a procedure’s risks of which any patient would need to be aware when making a decision, we also need to think about what other information a particular patient would want. And asking them remains the best way to find out.
Good practice involves a structured conversation about any proposed medical procedure, in which the doctor provides the crucial information that their expertise tells them a patient would need to know and then responds to the patient’s questions. Even better if the doctor can anticipate many of the patient’s questions by providing them with information tailored to their individual needs. And, of course, a well-designed patient information sheet - supplemented with individualised comments - is an excellent way of structuring that conversation.
While most doctors would say that any trend towards clinically unnecessary treatments such as elective caesarean sections is an issue for concern, the Montgomery case is a timely reminder that a doctor’s responsibility is not to withhold information but to ensure that patients are properly supported in using it to make appropriate decisions about their health.
Professor Steve Trumble
Chair, SMS Editorial Board
(conflict of interest statement: SMS distributes a library of INFOrm4U patient information leaflets to public hospitals and private practitioners throughout Australia)