Effective Communication in Pre-Operative Medical Disclosure
The implications of Montgomery v Lanarkshire 
How much information should a patient be given? What potential risks/alternatives should they be informed about?
On Tuesday evening I had the pleasure of attending the inaugural lecture of Prof. Rob Heywood at the University of East Anglia. His lecture (which will soon be available on their website) clearly outlined the implications of the landmark Supreme Court judgement – Montgomery v Lanarkshire Health Board ; well known in the medical profession.
Please find below my understanding of his lecture; any inaccuracies are entirely my own; any special insights are entirely his!
Pedantic note: Gavels are not used in UK courts
THE OLD TEST:
Prior to this case, English law supported medical paternalism. Bolam v Friern Hospital Management Committee  lay down what is known as the Bolam test: “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
This test was applied not just to diagnosis and treatment, but also to advice. The problem was that it benchmarked standards to contemporary colleagues. The medical profession was therefore made judge and jury of itself! Of course, patients are not usually medical experts; however, when it comes to pre-operative disclose, only the patient knows what information they would like to have! The patient is the expert.
(It should be noted that whilst the law set forth the paternalistic Bolam test, the medical profession had advanced ahead of the law prior to the landmark Montgomery case. GMC guidelines already put patient autonomy at the heart of informed consent).
THE NEW TEST:
The new ruling lays down the following test:
“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.”
There is therefore both a subjective and objective element to this test. What information would a reasonable patient want to know prior to their operation, and what information would this patient want to know? Not easy questions to answer!
This new test was clearly a step forward, placing patients at centre stage. The patient-doctor relationship was redefined legally.
However, Professor Heywood clearly outlined in Tuesday’s lecture several unanswered questions. To what extent does “therapeutic privilege” have a bearing on the matter? This is still untested in law. What will be the impact of the “particular patient” part of the new test? What are the boundaries of the duty to disclose possible alternatives? What about patient understanding? The list goes on!
In summing up, Professor Heywood emphasized what the key to all of this will be:
Dedici Workshop recommendations:
- Communication Skills for Healthcare Professionals
- Advanced Communication Skills for Healthcare Professionals
- Using Coaching to support people to manage their health