The Medical Defence Union recently stated that clinicians may have a defence against a claim of clinical negligence if they were to act in a way they felt 'was not in the patient’s interests.' (1) This suggestion was contestable when it was made, but the recent Supreme Court decision in Montgomery v Lanarkshire, as reported in your pages (2,3,4), now makes it a very flimsy defence indeed.
Although clinicians have an ethical and professional duty to act in their patients' interests (5, 6) the law only recognises acting in a patient's 'best interests' in the context of a lack of mental capacity in accordance with the Mental Capacity Act 2005. In patients who have capacity, acting in their 'interests' has no justification in law as it represents medical paternalism.
This was exemplified in Montgomery wherein the defendant did not disclose a risk of shoulder dystocia as she was of the opinion that to do so would promote women to request Caesarean sections 'and it's not in the maternal interests for women to have caesarean sections.' (7). This approach was previously supported by the majority decision in Sidaway (8) but it has been under increasing strain with more recent rulings favouring the rights of patients to be informed of risks(9,10,11). The Montgomery ruling has unequivocally overturned Sidaway with the patient's right to be informed about risk now paramount; and it is the patient, not the doctor, who determines what she needs to be told. This is the case even if such information would result in the patient making 'a choice which the doctor considers to be contrary to her best interests.' (12) The law is now framed that the overriding 'interest' is the patient's right to autonomy - anything less is negligent. (13)
1. C. Fryar, Doctors can depart from guidelines in patients’ best
interests BMJ 2015;345:h841
2. F. Godlee, New rules of consent: the patient decides BMJ 2015; 350:h1534
3. C. Dyer, Doctors must not cherry pick information to give patients, landmark case determines BMJ 2015; 350:h1414
4. D. Sokol, Update on the UK law on consent BMJ 2015;350:h1481
5. D. Wendler, Are physicians obligated always to act in the patient's best interests? J Med Ethics 2010;36:66-70 doi:10.1136/jme.2009.033001
6. General Medical Council, Good Medical Practice 2013
7. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 13
8. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 895
9. Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53
10. Chester v Afshar [2004] UKHL 41
11. Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB)
12. [2015] UKSC 11 91
13. [2015] UKSC 11 108
Competing interests:
I act as an expert witness in clinical negligence litigation.
22 March 2015
Philip S Rathbone
General Practitioner
Long Clawson Medical Practice
The Sands, Long Clawson, Melton Mowbray. Leicestershire. LE14 4EJ
Rapid Response:
Re: New rules of consent: the patient decides
The Medical Defence Union recently stated that clinicians may have a defence against a claim of clinical negligence if they were to act in a way they felt 'was not in the patient’s interests.' (1) This suggestion was contestable when it was made, but the recent Supreme Court decision in Montgomery v Lanarkshire, as reported in your pages (2,3,4), now makes it a very flimsy defence indeed.
Although clinicians have an ethical and professional duty to act in their patients' interests (5, 6) the law only recognises acting in a patient's 'best interests' in the context of a lack of mental capacity in accordance with the Mental Capacity Act 2005. In patients who have capacity, acting in their 'interests' has no justification in law as it represents medical paternalism.
This was exemplified in Montgomery wherein the defendant did not disclose a risk of shoulder dystocia as she was of the opinion that to do so would promote women to request Caesarean sections 'and it's not in the maternal interests for women to have caesarean sections.' (7). This approach was previously supported by the majority decision in Sidaway (8) but it has been under increasing strain with more recent rulings favouring the rights of patients to be informed of risks(9,10,11). The Montgomery ruling has unequivocally overturned Sidaway with the patient's right to be informed about risk now paramount; and it is the patient, not the doctor, who determines what she needs to be told. This is the case even if such information would result in the patient making 'a choice which the doctor considers to be contrary to her best interests.' (12) The law is now framed that the overriding 'interest' is the patient's right to autonomy - anything less is negligent. (13)
1. C. Fryar, Doctors can depart from guidelines in patients’ best
interests BMJ 2015;345:h841
2. F. Godlee, New rules of consent: the patient decides BMJ 2015; 350:h1534
3. C. Dyer, Doctors must not cherry pick information to give patients, landmark case determines BMJ 2015; 350:h1414
4. D. Sokol, Update on the UK law on consent BMJ 2015;350:h1481
5. D. Wendler, Are physicians obligated always to act in the patient's best interests? J Med Ethics 2010;36:66-70 doi:10.1136/jme.2009.033001
6. General Medical Council, Good Medical Practice 2013
7. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 13
8. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 895
9. Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53
10. Chester v Afshar [2004] UKHL 41
11. Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB)
12. [2015] UKSC 11 91
13. [2015] UKSC 11 108
Competing interests: I act as an expert witness in clinical negligence litigation.