165: A duty to offer alternatives? With John Whitting QC

[Music] You're listening to LawPod UK. It's a podcast that covers all aspects of civil and public law in the United Kingdom. All comments are current at the time of publication. It's a podcast that's brought to you by the baristers at one crime office road. And this edition is presented by Emma Louise Fenron. The clinical negligence practitioners amongst our listeners will be familiar with the key cases of Bollum and Montgomery and how they impact the sometimes notty issue of informed consent. I'm delighted to have here with me today John Quitting QC of One Crime Office Row for what I know will be a fascinating discussion about the duty to offer alternatives to ensure that consent is, in fact, informed. John, although we are all intimately familiar with Montgomery, anytime we go to a doctor's appointment and have to read and sign a consent form, it's probably worth reminding ourselves of those key principles. So could you do the honors? Sure. The relevant paragraph in the Supreme Court Judgment in Montgomery reads, "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 there for, under-eduated 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. And the test of materiality is whether in the circumstances of a 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." So following that reminder, we know that since Montgomery, a number of cases have provided further guidance on whether and when a duty to offer alternative treatment is owed. The Court of Appeal addressed this issue in relation to a case that I will pronounce as "Duce" and "Wistershire Acute Hospitals NHS Trust," which was a surgical consent case, and it should be mentioned that Philip Havre's QC and Richard Mumford of one Crown Officer O appeared for the respondent in that case. "Induce" the claimant underwent an operation which aimed to relieve her of persistent period pain. The surgery was performed competently, but the claimant nevertheless suffered chronic post-surgical pain. And she alleged that the defendant had failed to warn her of the risk of short-lived chronic neuropathic pain. So John, why is this case interesting in relation to alternative treatments? Because on one interpretation on Montgomery, which was certainly one which was advanced by the claimant in many cases in which I was involved, the professional judgment, which in term would be derived from the knowledge base and experience of the reasonably competent and careful clinician in victim Bollum, was now a matter of complete irrelevance. And instead, they were reduced to the status of an automaton who showed without any qualification or guidance or advised simply recite to a patient all of the alternative treatment modalities available to them, and all of the material risks associated with them and then leave the patient to select one of them. And it would be difficult to overstate the shock waves which that proposition, for obvious reasons, sent through the medical professional. And specifically in relation to the duty to offer alternative treatments, a very significant concern, was that Montgomery appeared to require every clinician, no matter what their status, experience or specialty, to have a comprehensive knowledge of every conceivable treatment known to the worldwide medical community. And so what made do interesting and significant in that context, was that it reintroduced the concept of the reasonably competent careful doctor, in other words, the Bollum test to at least one element of consent. And the court of appeal concluded that the duty identified in Montgomery was twofold. Firstly, what risks or reasonable alternative or variant treatments associated with an operation were or should have been known to the medical professional in question. And that was a matter of falling within the expertise of medical professionals and specifically medical experts in litigation. Secondly, whether the patient should have been told about such risks or reasonable alternative or variant treatments by reference to whether they were material, and that was a matter for the court to determine that issue was not therefore the subject of the Bollum test and not something that could be determined by reference to expert evidence alone. So do tell us that the clinician is not obliged to know literally everything, but rather only those risks or alternative treatments, which it would have been reasonable for a doctor in his position to have known. And the judgment also implicitly accepts that there is a role, also a role, expert evidence in determining the materiality of a risk, and in my experience, that extends in particular to the quantum of that risk. I know that some doctors interpreted the guidance from unhigh following Montgomery as requiring warnings to patients akin to the sort of thing one sees on American medication packets, listing pages and pages of every possible known risk. So it's interesting, and I think helpful from a practitioner point of view, that there is a degree of clinical judgment now injected back into this issue, as you say. But this came up again in Mills and Oxford University Hospital in HS Trust, in 2019 case, in which the high court was faced with the issue of consent in the context of a novel or unusual surgical technique. John, can you tell us what that case is about? Sure. So here, one of the issues concerned consent in the context of a novel or unusual surgical technique, and the extent to which an alternative technique should have been offered. And the claimant's case was that the surgeon had failed to advise that a minimally invasive endoscopic technique using a rigid endoscope was a novel technique, and not a standard well-tested technique for resection of a brain tumor. And that the use of an endoscope would involve more limited access than would otherwise be the case, and consequently greater risk to vessels that could not be directly visualized. And the trust had admitted that while the surgeon advised of the intended benefits and risks that were associated with the surgical approach, which he was actually intended to take, namely the minimally invasive endoscopically assisted open craniotomy technique, he did not discuss the alternative approach of a microscopically assisted open craniotomy technique. And this is an interesting scenario for several reasons, not least because the issue is not whether the patient was offered the choice between surgery and medical treatment. It goes further than that. It explores the extent to which a surgeon has autonomy over how he actually performs that surgery. And as we all know, there is very often more than one possible technique, and which one a particular surgeon may prefer, can be very subjective and may depend on a host of factors, including his own experience, all that of his unit, or perhaps even his own style of operating. And what the court's being asked here is the extent to which a patient should have the right to override the surgeon's personal preference and to dictate in essence how he does his job. So for those scratching their heads a little bit, what is the ultimate takeaway from this case? So the court fan that the defendant's surgeon had breached his duty of care by a not offering a microscopically assisted reception procedure as an alternative and be not explaining the comparative risks and benefits of that alternative surgical technique, which on the face of it would suggest that a surgeon does not have autonomy over how he performs a particular procedure. However, there was an important mantra play here which appears to have been "determinative of the outcome." And that is that the joint statement of the experts had agreed that, among other things, the claimant should have been advised that the surgical technique, which was being advised, was "a novel technique still in its evolution and not well established." And was not an approach that as yet was used by many neurosurgeons, other than Mr. Plaha, the surgeon in this case. And the court concluded that those were points which, and I'm quoting now, meet the Montgomery test of materiality. The test is not, of course, what it buys the experts consider is required. The focus is on what a reasonable person in the patient's position would be likely to attach significance to in deciding on his own treatment. The trust did not contend that any of the matters identified by the experts were not material, and in my judgment, they clearly are all matters that a reasonable patient in Mr. Mills' position would have considered significant in determining what treatment to opt for. It would have been open to Mr. Plaha to have described the technique as, for example, "new, newer, or innovative rather than novel." As long as he explained that it was not well established and that other neurosurgeons in the UK used the microscopically assisted technique, which was, quates the standard or conventional approach to resection of such a tumor. And that, it seems to me, is what made the circumstances of this case unusual and why it should not be read and nor should Montgomery as a whole be read, is saying that a surgeon is obliged to offer a range of alternative techniques to a patient. Once that patient has decided on the surgery, and after all, I don't offer my clients a range of different ways in which I could conduct a trial or perform cross-examination or writer-skillet and argument. Once they've instructed me to fight a trial, I take the view that they're entitled to rely on my skill and judgment and experience as to how best to do it. John, I have to say I would absolutely love to be in the room should a client of yours suggest a particular alternative cross-examination style. But then, And finally, in Christ and Quintaf University Health Board, another 2019 case, the claimant who had undergone a series of knee operations and whose case at first instance had been rejected by the trial judge on appeal had raised several grounds. One of those was as follows. An arthroscopy was not indicated for a patient in his position, was contrary to the nice guidelines and was a pointless operation to perform on him. And an aspect of this point was another issue about consent in that the consent form did not record any benefits for the operation and did not inform Mr Price that it was not indicated by the nice guidelines. John, what did the court find in this case? So an important point here is that it was not as if the nice guidelines positively said that the procedure should not be formed in these circumstances. Rather, they did not positively say that it should. So references in the judgment to the operation not being in accordance with nice guidelines should be read in that context. Anyway, Mr Justice Burce analyzed the decision in this way. And again, I'm quoting. The claimant argues that in order for Mr Price to have given informed consent in these circumstances, he had to have been additionally and expressly informed that the operation was not in accordance with the nice guideline. There is certainly no suggestion that he was informed and so if this is a good point, the consent process was flawed. The only authority cited in support of the proposition was Rae's and Thanat Clinical Commissioning Group of 2014 case. The image the CCG was found to have been obliged to provide clear reasons for not following nice guidelines. However, I do not accept that such a public law duty can or should be transposed by analogy into the process of obtaining a patient's informed consent. In a clinical negligence case, the court's judgment about the content of the dialogue leading to a patient's consent will be fact sensitive. Whatever the position might be in other circumstances, I cannot see how the absence of a reference to these nice guidelines in these circumstances amounted to an infringement of Mr Price's personal autonomy or vitiated Mr Price's ability to make decisions or himself. So there is no absolute obligation on a clinician to advise the patient as to what nice or any raw college guidelines might say or not say in relation to the proposed treatment. But that surely begs the further question of what would or should a doctor do if nice or some other guideline positively recommends a course of action, whether surgery or some other treatment, but the clinician or the unit where he works for whatever reason disagrees. And there's a problem which I had to consider quite recently in fact. I can't go too deeply into the specifics of that particular case, which has now been settled and is subject anyway to an anonymity order. However, for these purposes, the factual scenario was this. One of the top tertiary units in this country, if not the world, had undertaken its own detailed and comprehensive assessment of the evidence relating to the prescription of a particular medication in certain clinical circumstances. It had concluded on grants which even the claimants expert considered were logical and reasonable that it was of no clinical benefit. On that basis, as a matter of policy, they did not prescribe it in their hospital in those certain clinical circumstances. The trouble was that it was recommended by nice and was routinely prescribed for that reason that pretty much every other hospital in the country. And the issue then was whether that hospital was still obliged to offer that treatment to the patient even day-to-day and bear in mind that their research team was at least as impressive as that which had made the recommendations made by nice, did not consider that it would be of any benefit. The claimant rightly abandoned their original pleaded bolo-marketing and so liability would have been on purely Montgomery grounds alone. The unusual facts of the case tested the very limits of the duty to offer alternative treatments to a patient. And as you can imagine, it was extremely difficult to explain to my clients why there was a risk that the court might find that they had been in breach of duty in failing to offer a treatment when it was common ground that their rationale for not doing so was from a medical and scientific perspective impeccable. And they asked not unreasonably why they should bother undertaking their own research or developing their own informed and entirely reasonable policies and treatment plans. If they were then obliged to abandon them if the patients say demanded and the application of Montgomery in these circumstances is also, it might be said, wholly unrealistic since it presupposes that the junior doctor who would in reality be the one prescribing the medication and who might have only just started work at this unit should sit down with the patient and give an informed analysis of the pros and cons of the arguments and research, underpinning the respective policies of this unit and nice. But if one applies what seems to me now to be the applicable tests or tests of liability to the facts of this case, the potential for a court finding in the claimant's favour was very clear. Firstly, was the administration of this medication for this presentation a reasonable alternative or variant treatment and given that it was actually the treatment recommended by specific NICE and Royal College guidelines and was the treatment actually given by every other hospital and/or trust other than this one, then the answer to that question would unequivocally be yes. Secondly, should that reasonable alternative or variant treatment have been known to the treating clinicians again and for the same reasons as I've just articulated the answer would be yes. There was no in truth, no dispute that they were fully aware of that alternative or variant treatment because the relative merits of prescribing and not prescribing the medication in these circumstances have been the subject of exhaustive internal research, consideration and analysis in the course of formulating the trust policies. So on that basis, the first component of the twofold-dose test was satisfied or would have been satisfied and the second component of that test would have been whether the existence and status of that alternative treatment would have been of material consideration to this patient. And here, the court might well have concluded that a reasonable person in the patient's position would have attached some significance to the fact that both NICE and the Royal College guidelines recommended the prescription of the medication in these circumstances and that this unit was the only one or one of only very few in the country which did not follow that recommendation. So why it could not be said that adherence to and the offer of treatment recommended by NICE or the Royal College is of itself mandatory as to which she the decision in price. The court might well conclude that that fact taken together with the fact that the unit's policy was not to quote standard or conventional nor was it adopted by anyone else, see the case of mills, would have been a material factor in the consent process and if that were right, the second component of Duce would therefore have been satisfied and that would have been the way in which the court might have found that the defendant was in breach of its Montgomery obligations to the claimant. In that case, it would have been a fascinating case to fight but one obviously where both parties saw the potential for an adverse finding and therefore one which it was appropriate to compromise. But once again, it does throw into sharp focus the disconnect between the law and the practice of medicine and in particular the extent to which clinicians any longer have autonomy to treat their patients in the way in which their training, learning, expertise and experience tells them that they should. It's certainly food for a thought and a line of case law that practitioners will want to keep in the back of their mind when contemplating the GMC seven principles of decision making and consent published in late 2020 that no doubt now guides decision making made by doctors and others. John, many thanks for coming on the par, Jennifer, and offering listeners the benefit of that extremely helpful analysis. I'm sure they will go away and give this some further thought. Lawport UK is presented by Emma Louise Fennellon and produced by one Crown Office Row.