Bilal and Malik v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605: informed consent in treatment options.

Christopher Fleming looks at a recent Court of Appeal decision which considers whether the Bolam test has a place in determining what alternative forms of treatment should be discussed with patients.

It is difficult to think of a judgment from the past 10 years which has had a more profound impact on the ways in which patients interact with healthcare professionals than Montgomery. As it is now widely understood, Montgomery represented a seismic shift away from a paternalistic approach in healthcare, and towards a more patient centred focus.

The correct approach to the consideration of risk in informed consent cases is now clear: the old Bolam test no longer has a place in the assessment of risk in consent cases. It is for the patient (and by extension the court) to determine what constitutes a material risk. At [87] of their decision, Lord Kerr and Lord Reed stated as follows:

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. 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.

While the question of how the materiality of risk is to be assessed has largely been settled, the correct approach to offering alternative forms of treatment remains an issue very much in dispute. The debate turns on whether there is still a place for Bolam reasonableness in the assessment of whether a medical professional should offer reasonable forms of alternative treatment. Put differently, should the reasonablenessof the alternative treatment be determined by reference to the Bolam test (a question for the medical professional) or by reference to Montgomery (a question for the patient/judge)? If the former were to apply, then a medical professional would not be negligent if she were to fail to recommend treatment so long as a reasonable body of medical opinion agreed that it was reasonable for her to do so. If the latter were to apply, the materiality of reasonable alternatives would fall to be determined by the patient/judge. On this interpretation, a medical professional would act negligently in failing to discuss treatment which may not have appeared ‘reasonable’ to them, but would have been considered relevant by the patient/judge.

This dispute was recently considered by the Court of Appeal’s in Bilal and anor v St George’s University Hospital NHS Foundation Trust.

In that case, the appellant sought to overturn the decision of HHJ Blair KC dismissing the claimant’s claim following an elective surgery which had resulted in the deceased suffering a spinal cord injury.

Mr Malik, the deceased, attended the respondent’s A&E department with severe back pain. Mr Minhas, a consultant spinal surgeon at the respondent’s hospital, performed emergency spinal surgery on Mr Malik to decompress the spinal cord. There was no criticism of the surgery, sadly Mr Malik suffered paraparesis as a result and would be wheelchair dependent for the remainder of his life.

In summary, the claim was one of informed consent in which the claimant alleged (inter alia) that Mr Minhas had acted negligently in failing to offer the deceased alternative forms of treatment before proceeding to surgery.

The appeal failed on separate grounds (to which the issue of informed consent were parasitic and which will not be considered in detail in this article), but Davies LJ did address the question of informed consent. She dismissed the appellant’s contention that the judge’s approach had represented a ‘gloss’ upon the authority of Montgomery and found that he had been correct to find that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that no reasonable alternative treatments were available in this context.

She considered the continued relevance of the Bolam test in informed consent claims:

I accept the contention of the respondent that Montgomery draws a distinction between two aspects of a clinician’s role, namely an assessment of treatment options (Bolam) and an assessment of what risks and treatment should be explained to the patient because they are material (Montgomery). The distinction between the two roles of the clinician is contained within the judgment of Montgomery at para 87 where it is stated that: “the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” I accept that “reasonable” in respect of the assessment of alternative or variant treatments encapsulates the Bolam approach. As to material risks, that is the element of materiality which is to be judged from the perspective of the patient i.e. Montgomery. In my judgment it is for the doctor to assess what the reasonable alternatives are; it is for the court to judge the materiality of the risk inherent in any proposed treatment, applying the test of whether a reasonable person in the patient’s position would be likely to attach significance to the risk. Thus the Judge at [93] was correct to apply Bolam and to conclude that his assessment reflected the guidance set out in para 87 of Montgomery. [emphasis mine]

Comment

This will not be the last we hear on this issue. The Supreme Court is yet to hand down their decision which will consider this very point in the case of McCullough v Forth Valley Health Board, following the hearing in May of this year. We will return to this decision and the issue of consent once the judgment has been handed down, but in the meantime, here are some thoughts on Davies LJ’s interpretation of Montgomery:

• One could query whether the re-introduction of Bolam into the issue of informed consent represents a step back from the patient-led approach which was so firmly advocated by Supreme Court in Montgomery. See at [90]:

[…] the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision.

•  Seen one way, applying a test of Bolam reasonableness would remove the decision-making power from the patient and place it once again in the hands of the medical professional. In practice, this would mean that a surgeon would not be at fault for failing to discuss treatment with a patient which a reasonable body of medical opinion might not consider reasonable, when, if given the choice, the patient would in fact have opted for that very form of treatment. Choice of treatment is a profoundly personal decision, and as such it feels counterintuitive that the decision of what treatments ought to be presented and discussed with the patient should be determined solely by the medical professional. This reasoning appeared to underpin the decision of Simon LJ in the case of Webster v Burton Hospital NHS Trust [2017] EWCA Civ 62:

31. […] In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear, as Lord Kerr and Lord Reed conclude at para 85, that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values her own assessment of the comparative merits of giving birth in the ‘natural’ and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide. […] She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision. [emphasis mine]

• Respectfully, Davies LJ interpretation of Montgomery appears to run contrary to the facts in that case. Readers may remember that the doctor in Montgomery had not been found to have acted negligently by the lower courts because a reasonable body of medical opinion would also not have told the claimant about the availability of a C-section (i.e. he was not Bolam negligent and therefore not at fault).

• The decision of Sheriff Collins KC in the Scottish case of Britten v Tayside Health Board [2016] SC DUN 75 also provides an interpretation of Montgomery which runs contrary to Davies LJ’s:

24. A further aspect of this discussion arises from paragraph 90 of the Supreme Court’s judgment. Here the Court explains that the doctor’s advisory role involves dialogue with the patient, not a monologue. The process is therefore dynamic and interactive. It might be argued – as indeed was suggested in this case – that which if any alternative treatments might be reasonable, such as would require them to be mentioned and discussed by the doctor, may therefore depend on how the dialogue progresses. If, in particular, the patient clearly expresses the view that he wants the most efficacious treatment for his immediate condition, is the doctor then entitled to take the view that other, less efficacious treatments are therefore not reasonable in the circumstances, and therefore do not need to be mentioned or discussed? Again, it seems to me, that to accede to such an argument would be to run counter to the clear direction of travel of the Supreme Court’s decision in Montgomery. A patient may express a view that he wants a particular treatment, or treatment outcome, but unless he knows what the alternative treatments are, and how their risks and benefits compare, his view will not be properly informed. If he is fully advised as to the alternatives, his initial views stated in ignorance of these alternatives may change, even if they had been strongly expressed. […] [emphasis mine]

48. Only in the light of knowledge of the available alternatives and their relative risks and benefits can the patient express a properly informed view about the treatment outcomes which he wants, and so chose the treatment which for him is likely to best achieve those outcomes. 

We await the Supreme Court’s decision to see whether Davies LJ’s interpretation of Montgomery was correct, or whether yet further seismic changes are set to take place in the world of informed consent.