Will Judicial Deference to Medical Opinion Undermine the Patient-Focused Standard of Informed Consent to Medical Treatment?

By Mrs Louise Austin, Associate Teacher in Medical Law and PhD Candidate in Law (1+3 ESRC) (University of Bristol Law School).

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Following the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board, which moved away from a model of medical paternalism and established a model of patient autonomy for informed consent to medical treatment, the High Court has recently had the opportunity to apply the new test in Grimstone v Epsom and St Helier University Hospitals NHS Trust. This blog post provides a summary of my case commentary in the Medical Law Review exploring this decision and its implications, which is now available as ‘Grimstone v Epsom and St Helier University Hospitals NHS Trust: (It’s Not) Hip To Be Square’.

In 2015, in a landmark decision concerning informed consent to medical treatment (Montgomery v Lanarkshire Health Board), the Supreme Court held that the question of whether a patient should be told of a particular risk of treatment was no longer to be determined by asking whether a reasonable doctor would have disclosed the risk (known as the Bolam standard). Instead, it should be answered by asking: (a) would a reasonable person in the patient’s position be likely to have attached significance to the risk; or (b) was, or should the doctor have reasonably been aware that the particular patient would have attached significance to it? If the answer to either of those questions was ‘yes’, then the risk should have been disclosed, regardless of whether other doctors would have disclosed it or not.

The Supreme Court also held that in addition to disclosing risks of treatment, doctors should disclose any reasonable alternative or variant treatments. In adopting this approach, the Supreme Court sought to align the law with medical professional guidance which for many years had said that information disclosure should be focused upon information the patient may ‘want or need’ about risks, benefits, and alternatives, including the option not to treat. This approach reflected a move away from a model of medical paternalism whereby doctors decided what was in a patient’s best interests to know, to one of patient autonomy where patients are to be treated as ‘capable of understanding’ that medical treatment is uncertain of success.

Following the decision in Montgomery, the case of Grimstone v Epsom and St Helier University Hospitals NHS Trust was one of the first opportunities for the High Court to put the redefined standard of disclosure into practice. Mrs Grimstone had alleged that the information given to her about hip replacement surgery was inadequate because the surgeon had not told her that there was limited data available on the long-term success rates of the implant used during the surgery. Despite acknowledging that Montgomery had altered the standard of risk disclosure, the judge in question concluded that Mrs Grimstone’s surgeon had not been obliged to advise her about the limited data because ‘a reasonable body of doctors in the same position would not have given such information’.

In my view, the case deserves careful consideration. My commentary in the Medical Law Review begins with an exposition of Montgomery’s redefining of the standard of disclosure, before considering the judgment in Grimstone and why it falls short of the redefined standard in Montgomery. The commentary argues that the failure to apply the redefined standard in favour of the reasonable doctor approach in Grimstone reflects persisting judicial deference to the medical profession, evidenced in the construction of the judgment. Such deference to medical opinion has the potential to undermine patient autonomy. The case illustrates therefore, that whilst the legal standard of disclosure now focuses on what is important to the individual patient, unless judges take on board the importance of this, there is a risk that medical opinion will continue to determine what information a patient should receive before agreeing to undergo medical treatment.

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