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Reflections from Australia OPINION The future of failure to warn in dentistry after Montgomery: reflections from Australia A. C. L. Holden1 In brief Illustrates how the law of consent in the UK may Helps readers to understand how the process to Explains the difference between material and non- develop in the same way as Australia. gain valid consent might be approached post- material risks. Montgomery. The switch from the standard of the reasonable professional, to that of the reasonable patient in cases where it is alleged that a health professional has not imparted sufficient information to allow the gaining of valid consent, has created anxiety and confusion within the dental profession. The ruling in Montgomery v Lanarkshire Health Board is relatively young; there have been insufficient subsequent cases to truly allow a deep exploration of the real changes that the case will bring to the way dentistry and other health activities are provided. One way that light may be shone onto the significance of Montgomery is to examine the development of the law in this area from Australia. Australia and the UK share a common history and while each legal system is independent from the other, they hold significant influence upon each other’s destiny. This article seeks to shed light on the true relevance of Montgomery to dentistry in the UK through examination of the Australian position towards the gaining of valid consent which has enjoyed somewhat of a head-start in this area of the law. Opinion Bolam standard accepted by the courts was Consent: patients and doctors making decisions applicable in both negligent treatment and together,6 states that assumptions about the Since the determination in the case of failure to warn cases. Montgomery has not knowledge and understanding of patients Montgomery v Lanarkshire Health Board1 removed the application of Bolam to matters about matters of consent should not be made (hereafter referred to as Montgomery) the of negligent treatment, and only applies to and that if treatments have potentially serious health professions in the United Kingdom claims based upon a failure to warn. The adverse outcomes, patients must be informed have been forced to reconsider policies and decision in Montgomery has moved the UK of these. Similarly, the General Dental Council procedures relating to shared decision-making. position closer to that of Canada given in also supports this approach. Interestingly, the While the judgement of the Supreme Court Reibl v Hughes4 and the United States decision now superseded guidance, Principles of patient of the UK is, upon first glances, thought to in Canterbury v Spence,5 although perhaps not consent, stated; ‘find out what your patients be a seismic shift in approach, it has served to the extent that it has aligned to Australia. want to know as well as telling them what to somewhat align the positions relating Since the ruling given in Rogers v Whitaker, you think they need to know.’7 This previous to the duty to inform between the UK and Australian common law has further developed guidance embodies the spirit of Montgomery Australia. In this article, the extent to which the switch from a paradigm of the ‘reasonable well and yet pre-dates the Montgomery Montgomery really has disrupted the estab- practitioner’ standard to one of the ‘reasonable decision by ten years. Despite this pre-existing lished view of consent will be examined. patient’ in cases where there is alleged failure guidance, it is possible to find confusion and In Australia, the High Court rejected the to inform of risks to treatment. a sense of exasperation within some of the accepted Bolam test2 of the reasonable prac- This article will seek to examine how this literature dealing with the new stance of the titioner with regard to failing to inform in common law position has developed and how common law for health professionals. D’Cruz the case of Rogers v Whitaker3 some 22 years UK dental professionals might approach the and Kaney state: before the UK Montgomery judgement in the consent process post-Montgomery. Any claim ‘The requirement is that a dentist, in respect Supreme Court. Prior to Montgomery, the that the decision of the UK Supreme Court has of consent, should tell the patient everything changed healthcare practice monumentally they want to know as well as everything the would be an exaggeration. While in practice dentist thinks they might need to know. You 1Lecturer in Dental Ethics, Law and Professionalism, Faculty of Dentistry, University of Sydney, 2‑6 Chalmers Street, many may now be paying attention to the issue might be forgiven for thinking that this has a Surry Hills, NSW, 2010, Australia of consent with wider eyes, the regulatory mystic clairvoyant feel about it and you may Correspondence to: Alexander Holden 8 Email: [email protected] infrastructure within medicine and dentistry not be far wrong.’ has supported the idea of shared decision- While one suspects that the authors made Refereed Paper. Accepted 29 August 2017 DOI: 10.1038/sj.bdj.2018.1 making in a patient-centric manner for some this statement with their tongues firmly in time. The General Medical Council’s guidance, cheek, there exists a large degree of congruence BRITISH DENTAL JOURNAL | VOLUME 224 NO. 1 | JANUARY 12 2018 11 Official j ournal of the British Dental Associati on. OPINION with this outlook within the profession at large. As we have seen, this may be construed by say, a universal test for an hypothetical reasonable There is clearly a need for some development some to place a burdensome duty upon practi- person in the patient’s position, and a test to be and elaboration of the new ‘reasonable patient’ tioners where they are responsible for determin- applied to the particular patient, even if, perhaps, standard for dental professionals to understand ing what matters to patients and what does not. she or he is an unreasonable one. What this in their obligations and how these are to be The finding in Montgomery could be practice may mean is that the more inquisitive, or carried out. It is to explore the potential devel- interpreted as a negative development for demanding, or less or more sophisticated perhaps, opment of Montgomery in UK law and how health professionals; medical opinion in or obsessive, or suspicious, or hypochondriacal the the patient-centric consent standard should be the courts being set aside in favour of the patient may be, the greater the need for identifica- considered that this article is written. standard of a reasonable patient. Another way tion of and elaboration upon the slightest risks The now-overturned case of Sidaway v in which Montgomery could be interpreted because such a patient may be likely to attach Board of Governors of the Bethlem Royal is that all risks are material and therefore significance to them.’16 Hospital9 reaffirmed the application of the must be discussed with the patient, even In his judgement, Justice Callinan refer- Bolam principle in failure to warn cases in the those with such a low likelihood of occur- ences, as an example, that Marie Whitaker, UK at the time of its deciding. However, of note rence (1:14,000 for example, as in Rogers the respondent in Rogers v Whitaker,3 was within the judgement was the opinion of Lord v Whitaker). A rather exaggerated way in incessant in her questioning of Dr Rogers and Scarman who stated: which the judgement has been interpreted mentioned on many occasions her concerns ‘In my view the question whether or not the (and indeed the way that expert commentary about developing blindness in her good eye. omission to warn constitutes a breach of the on the issue has been interpreted) is that rather When such a patient presents who requests doctor’s duty of care towards his patient is to be than a paternalistic model of care, patients and desires a more comprehensive explana- determined not exclusively by reference to the should have all options laid out before them tion of treatment, this should be given. This is current state of responsible and competent pro- and simply be allowed to choose that which in contrast to the respondent in Rosenberg v fessional opinion and practice at the time, though suits them best.12 The rejection of paternalism Percival;15 Dr Patricia Percival was a nurse of both are, of course, relevant considerations, but in favour of an informative model13 of patient many years clinical experience who decided by the court’s view as to whether the doctor in care is not appropriate. While paternalism that she wanted to have her malocclusion advising his patient gave the consideration which has no place within healthcare, neither does treated. She saw Dr Rosenberg, an oral surgeon, the law requires him to give to the right of the the abandonment of patients by healthcare and after several consultations went ahead with patient to make up her own mind in the light of professionals abstaining from the decision- a bilateral sagittal split osteotomy. She was not the relevant information whether or not she will making process in the false interpretation warned of the risk of developing temporoman- accept the treatment which he proposes.’10 that by stepping away, they are fulfilling their dibular joint complications or nerve damage. Lord Scarman held the minority dissenting professional duty. Professional guidance does She developed persistent post-operative pain view in Sidaway, often relegated to discussions not support this attitude; guidance released by that did not respond to physiotherapy or cor- within legal tomes and academia. However, the Royal College of Surgeons14 following the rective surgery. While she was not warned of that view was brought into the fore in the Montgomery judgement details the consent any risks of nerve or joint damage relating to 1992 Australian High Court case of Rogers v process and how practitioners must adapt to the surgery, she equally did not ask about any.
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