Guest Post: Information Disclosure Post-Montgomery: Are English Courts Likely to use Causation as a “Control mechanism” to Limit Liability, like in Australia?

Authors: Malcolm K Smith and Tracey Carver, Australian Centre for Health Law Research, Queensland University of Technology, Australia.

Paper: Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

The UK Supreme Court decision of Montgomery v Lanarkshire Health Board [2015] 1 AC 1430 establishes that a health professional’s duty to disclose treatment information, requires a patient-focused approach. This approach requires that health professionals disclose all material risks and treatment information if either a reasonable person in the patient’s position would be likely to attach significance to it, or if the health professional is or should be reasonably aware that the particular patient would be likely to attach significance to it.  The decision therefore signifies a move away from a paternalistic approach to information disclosure, informed by the preferences of the profession, towards one centred upon the materiality of information based on the individual patient’s circumstances. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision-making under the law of negligence in a way that mirrors the duty set out by the Australian High Court in Rogers v Whitaker (1992) 175 CLR 479.

The law in Australia concerning the duty to disclose material information has been established as a patient-centred test for more than 25 years. Over this period of time, case law has considered the scope of the duty and the circumstances in which a health professional will or will not be held liable for negligent non-disclosure of information. Whilst it can be acknowledged that one of the main influencing factors underpinning the duty is to prioritise the concept of autonomy and the patient’s right to make informed decisions on the basis of all relevant information, in Australia, causation principles have been used to limit the ambit of the duty and arguably narrow its underlying purpose. In the Australian High Court decision of Wallace v Kam (2013) 250 CLR 375, it was emphasised that the purpose of the duty is not to protect the right to autonomous decision-making in a general sense. Instead, the duty is intended to protect a patient from subjecting themselves to particular physical injury the risk of which they regard as unacceptable.

The case of Wallace required the Court to determine whether liability should extend to a surgeon for failing to disclose multiple inherent risks in a procedure. One of those risks materialised, and the key question facing the Court was whether the surgeon had caused the patient’s harm in the sense that they should be held liable for it. The patient argued that if warned of all of the material risks in question, they would have refused the surgery thereby avoiding their injuries. However, the patient also conceded that if the risk that in fact materialised had been the only inherent risk in the procedure, they would have decided to run that risk and consent to the surgery. The High Court therefore held that in such circumstances the scope of liability should not extend to allow a patient to be compensated for the materialisation of a risk of harm that they did not regard as unacceptable. This is so, even though the patient would have refused the surgery and avoided that harm if all relevant information had been known. The effect of this decision is that it has arguably narrowed the protection afforded to patient autonomy under Australian negligence law. By comparison, the duty in Rogers had previously been described in Chappel v Hart (1998) 195 CLR 232, 272, 277, as: so ‘conducive to respect for the integrity of the patient and better health care’ that if not complied with ‘it should occasion no surprise that legal consequences follow’.

Other commentators, who have also published in the Journal of Medical Ethics, have questioned whether causation principles might also be used as a “control mechanism” under English Law in the future. If this were so, it may similarly narrow the underlying purpose of the duty to limit the potential liability of health professionals. Our paper in the Journal of Medical Ethics considers the likelihood that this reasoning may be adopted in the future. We analyse the English jurisprudence in this field to consider the underlying purpose of the duty of care, observing that the principle of autonomy and the concept of the right to make informed health care decisions feature more heavily in English jurisprudence. As such, we form the view that English negligence law is unlikely to follow the approach to causation exhibited by the Australian High Court in Wallace, as this would signal a stark retreat from its own very recent pronouncement that champions the significance of patient autonomy in modern medical decision-making.