The role of the medical expert in consent cases
It has now been a few years since the decision in Montgomery v Lanarkshire Health Board (Scotland) Hilary Term  UKSC 11.
In that case, their Lordships concluded that the Bolam test was not appropriate in cases of consent, stating:
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. 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 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.”
See Caroline Bourke’s blog for an analysis of the cases which were immediately influenced by this decision. There had been an initial fear by defendants that the floodgates would be opened but so far this does not appear to have happened. An example is the recent case of Duce –v- Worcester Acute Hospitals NHS Trust  EWCA Civ 1307 decided in May 2018. In this case the claimant argued that she had not been warned of the risk of post-surgical pain following a hysterectomy. She claimed that if she had been warned of this risk, she would not have had the operation and would have gone down the line of conservative treatments. It was accepted that she was not warned of the risk but the judge found that the claimant would have proceeded with the operation even if so warned, i.e. it was not a material risk. This was upheld on appeal.
Material risk is not defined in Montgomery and whether a risk is material will depend on the circumstances of the individual patient. As a crude example, the risk that an operation may leave one with a hoarse voice is much more significant to a teacher than to librarian. What interests me is how this impacts on the role of the medical expert.
It is not the medical expert’s place to decide whether a particular treatment and particular risks should be discussed with a patient. Their role should be confined to giving evidence on whether a doctor has correctly identified the reasonable range of treatment options and correctly assessed the risks (and benefits).
Take the example of the teacher who is facing an operation which may make her voice hoarse. The percentage risk may be so low (say 1%) that the treating surgeon fails to warn the teacher and fails to discuss alternative treatments. When that teacher comes to make a claim, her medical expert is not entitled to provide evidence on whether that 1% risk is a material risk. This is for the court to decide and the claimant’s witness evidence will be crucial.
On a few occasions I have struggled with medical experts who fail to limit their opinion in this way. I suspect that Montgomery has not been fully understood, but hopefully this will become less so as the case law continues to evolve. More alarming is when Montgomery has been fully understood by the medical expert but they have sympathy with the treating doctor and consider Montgomery to be unfair (particularly as the decision has retrospective effect). The potential is for that expert to find a way to be unsupportive of the claim, thereby redressing a perceived imbalance. Even when not faced with this, it is clear that the floodgates have not opened as once feared and that consent cases remain difficult for claimants to win.