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AM Senior & Junior in UKSC case of Montgomery

The UKSC has today published its Judgment in the case of Montgomery v Lanarkshire Health Board, a copy can be found here.  This is a case where Arnot Manderson silk Colin MacAulay QC (pictured below) appeared for the appellant on the instruction of Balfour & Manson opposite Arnot Manderson’s Neil Mackenzie, Advocate (pictured below) who was instructed as junior counsel for the respondent by the NHS Central Legal Office.

Besides having wide ranging implications the case demonstrates the strength and depth that the Stable boasts when it comes to Medical Negligence cases.

The key points have been summarised below.

  1. 1.  The Supreme Court has unanimously allowed the Appeal in Montgomery v Lanarkshire Health Board.
  2. 2.  The analysis of the duty to warn in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 has been held to be unsatisfactory.
  3. 3.  A doctor is under a duty to take reasonable care to ensure that her patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
  4. 4.  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.
  5. 5.  The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.
  6. 6.  What amounts to a material risk and the skill and judgement required in explaining risks to the patient is for the Court, and not the medical profession, to judge.
  7. 7.  To prove a breach of duty to advise and warn, a pursuer does not require to prove that no doctor of ordinary skill would have failed to have given her advice, if acting with ordinary care, as supported by medical opinion.
  8. 8.  A patient may decide that she does not wish to know what her risks and options are.
  9. 9.  The “therapeutic exception”, which allows a doctor to withhold information from a patient only applies if its disclosure would be seriously detrimental to the patient’s health, or in circumstances of necessity, such as where the patient is unconscious or unable to decide.
  10. 10.  Causation continues to be based on a subjective test: what the pursuer was likely to have done, had she been warned and advised properly.  To prevent hindsight bias, this will require to be tested by other evidence.

Junior counsel for the respondent has helpfully given his thoughts on the implications of this important case in an article titled Dr No which you can download by clicking on the link below.  This will be essential reading for anyone working in this area.

Dr, No, 8.3.15


Photo of Colin MacAulay Photo of Neil Mackenzie