Professional standard and disclosure of material risks (Montgomery v Lanarkshire Health Board)
Ines, a professional dancer, consults Mr Haddad, an orthopaedic surgeon in an NHS hospital in England, about knee surgery. She tells him that her career depends on full mobility in her legs. He recommends surgery but does not mention a 1% risk of permanent nerve damage causing foot drop, or the option of a longer course of physiotherapy instead. Expert evidence shows that a responsible body of orthopaedic surgeons would not mention a risk as low as 1%. Ines does not ask about risks. The nerve damage occurs and ends her career.
Which of the following best describes whether Mr Haddad breached his duty of care in failing to tell Ines about the risk?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: He is likely to be in breach, because he had to take reasonable care that she knew of material risks, which included a risk this patient would think significant.
THE RULE TO REMEMBER
Doctors must take reasonable care that patients know of material risks and reasonable alternatives; a risk is material if a reasonable patient, or this patient to the doctor's knowledge, would consider it significant.
Professional standard and disclosure of material risks (Montgomery v Lanarkshire Health Board)
In Montgomery v Lanarkshire Health Board [2015] UKSC 11 the Supreme Court held that the Bolam test does not govern advice about the risks of treatment. A doctor is 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. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would be likely to do so. Materiality is not a matter of percentages alone. Ines told Mr Haddad that her career depended on full mobility, so he should reasonably have known that she would attach significance to a risk of permanent foot drop, even at 1%. Whether physiotherapy was a reasonable alternative that had to be mentioned is judged by the professional practice test (McCulloch v Forth Valley Health Board [2023] UKSC 26). The fact that other surgeons would not have disclosed the risk does not protect him. Causation would still need to be proved separately.
Why B is wrong: The Bolam test still governs diagnosis and treatment, but Montgomery held it no longer applies to the disclosure of risks.
Why C is wrong: Bolitho qualifies the Bolam test; neither test decides whether a risk had to be disclosed after Montgomery.
Why D is wrong: Montgomery rejected an approach that makes disclosure depend on the patient asking questions.
Why E is wrong: There is no percentage threshold; materiality depends on the significance a reasonable patient, or this patient, would attach to the risk.
A little more practice done.
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