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“The Montgomery case sets out very clearly what our obligations are in terms of information disclosure”


Nadine Montgomery successfully sued Lanarkshire Health Board over negligence on the birth of her son Sam, who was born with cerebral palsy


her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor (dentist) 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 for 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.” So, in practice, what does this mean? Well, in addition to warning a


to warn the patient, but apart from these exceptions, in the main, the decision to warn the patient or not was based on risk - the likelihood of it occurring in percentages.


The patient’s view The Montgomery case, whilst not changing the law significantly, does force clinicians to look at things rather differently. It sets out more clearly what our obligations are in terms of information disclosure. The focus now is on matters that the patient would find important, not just the clinician’s assessment of the likely risk. Within the judgement it says: “…it follows…that the assessment of whether a risk is material cannot be reduced to percentages.” It then makes it clear that the assessment of relevant information to disclose cannot be based solely on the percentage risk of occurrence, but must include an assessment of what the patient would find important. The judgement also then says that the courts will have the final say in “determining the nature and extent of a person’s rights… not the medical professions” . The judgement states: “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and


patient of likely complications and rare but severe complications, we are now also required to assess whether or not a particular patient would attach significance to rare complications and therefore should be warned about them before embarking on treatment. In other words, stand in their shoes and make a judgement on whether or not they would want to know about a rare but possible complication before agreeing to treatment. Just to make it a tad more challenging, the patient does not have to ask specific questions about rare risks as it’s been pointed out that a lay person should not be expected to know what questions to ask. Obviously the safe thing here is to fully explore any issue the patient raises and ensure the discussion is fully documented in the clinical records. It is always good to reflect upon our interactions with patients and perhaps here is a chance to check that our consenting processes are fit for purpose and incorporate the new additional requirement. If you ever have difficulty in assessing what you think a particular


patient might be concerned about, even if they do not ask any questions about specific risks, then contact MDDUS for advice.


Claire Renton is a dental adviser at MDDUS


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