In a major change of policy, the Supreme Court in its judgement in Montgomery -v- Lanarkshire Health Board has introduced a new approach of informed patient consent for the first time in negligence law. The decision concerned a medical claim, but the principle is also likely to apply in dental cases where there is a similar obligation to obtain consent for treatment.
When discussing the benefits and risks of various treatment options with patients, the new ruling requires clinicians to consider and be aware of whether a reasonable person in the patient’s position would/should be likely to attach significance to the risk. This supersedes the previous test, applying from the cases of Bolam and Sidaway, that a clinician would not be negligent if the information given to a patient about a treatment or procedure was compatible with that which would be given by a responsible body of medical opinion, provided the standard was considered reasonable by a Court.
Rupert Hoppenbrouwers, head of the DDU, said:
"The Supreme Court justified its decision on the basis of the change in the nature of the clinician/patient relationship since the case of Sidaway 30 years ago. The new legal approach recognises that patients want to be well-informed about significant risks and reasonable alternative treatments. However, the need to discuss these risks with patients during the consent process is already enshrined in ethical guidance and the Supreme Court judgement reflects the approach to sharing information with patients in the GDC’s Standards for the Dental Team.
"Dental professionals will already be aware of the ethical need to warn patients about material risks but as a result of the judgement, making a detailed record of the information provided to the patient about the risks involved in proposed treatment is likely to be even more important.
"While the new legal approach applies to cases of alleged negligent failure to inform about treatment risk, it does not apply to negligence actions more widely, which are still determined by the Bolam test."