Re: Update on the UK law on consent
Dr Freudenthal asks if the Montgomery ruling has opened the floodgates for the courts rejecting the Bolam test in other areas. The Bolam test, with the Bolitho qualification, will continue to apply to determine the liability of acts and decisions based on medical expertise (and indeed in other areas too, such as accountancy, architecture, engineering, law, and so on).
The Bolam test would be applied – and will continue to be so - to determine whether a doctor was negligent in, say, proposing an embolisation procedure, and whether that procedure was competently performed. It will no longer be applied to whether the doctor should have raised the alternatives of hysterectomy or conservative management during the consent process. The dilution of Bolam over the years, culminating in Montgomery, was primarily in reference to the giving of advice, the failure to warn, and consent generally. In my view, the prognosis for Bolam is not as grim as that contemplated by Dr Freudenthal.
Dr Levine, in his rapid response, has noted the intangibility of the concept of the ‘reasonable person’. English law is full of references to ‘reasonableness’. A professional person has a duty to exercise reasonable care and skill; an occupier of premises has to take reasonable care to ensure those premises are reasonably safe to visitors; and so on. Of course there is latitude in the interpretation of ‘reasonable’. The rationale for the ‘reasonable person’ test was eloquently put by Lord MacMillan in Glasgow Corp v Muir in 1943:
‘It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from overapprehension and from over-confidence.’
This only takes us so far. A prudent practitioner will ask colleagues for their views on what a ‘reasonable person’ would do or, as here, would want to know. Dr Levine is surely right, however, when he alludes to the changing interpretations, over time, of the ‘reasonable person’. Courts - or judges - determine the meaning of ‘reasonable person’. As society changes, so too does the ‘reasonable person’. Hence the reasonable person in 2015 will differ in some respects to the reasonable person in 1915. He or she, for example, expects far more information about proposed medical interventions than before.
Sir William Osler spoke of ‘this everlasting perhaps with which we have to preface so much connected with our art.’ Uncertainty is an inherent part of clinical medicine, as well as medical law and ethics. Accepting the inevitability of some degree of uncertainty is a sign of maturity in each of those domains.
Competing interests: I am the author of the article.