Doctors and lawyers are still talking about
the Montgomery case. On March 11, 2015
the UK Supreme Court decided that the Bolam test no longer applied to the
consent for medical treatment. Doctors
could not rely on common practice or support from responsible medical opinion
to omit rare but significant risks when getting consent from their
patients. Instead, we now have 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.”
If you have studied law after 1997, or if
you have read a bit about Bolam, you would not be shocked by the Montgomery
case. Bolam was decided in 1957. Since
then, and especially in the recent 30 years, the Bolam test has been said to be
“out” and no longer applied in various areas of medical negligence cases too
frequently. After reading Montgomery, I
am happy that Bolam test is still treated as the rule with more than a few
exceptions. I foresee that soon Bolam
test will become the exception in the decision of the standard of care in
medical negligence.
Tracing back to 1985, in Sidaway, Lord
Scarman, though as minority in dissent, had said that the Bolam principle
should not apply to the issue of informed consent. A doctor should have a duty to tell the
patient of the inherent and material risk of the treatment proposed. To me, the most important limitation set on
Bolam was by Bolitho in 1997. In
Bolitho, medical opinions were divided on whether the claimant, a child in
respiratory failure, should have been intubated. If Bolam was followed, the defendant doctor
should automatically be deemed not fallen below standard as she was supported
by respectable medical opinion. However,
the House of Lords took the chance to announce that it was the Courts that set
the law and not the medical profession.
Even if the medical practice was supported by a body of respectable
medical opinion, it needed to be logically defensible. Whether that particular medical practice stood
on logic would be decided by the Courts. The decision would include the
weighing of risks against benefits.
Embraced in the Bolitho decision is the
insurance principle. If the consequence
of a risk is grave when materialized, it should be insured against especially
when the cost of insurance is low. Thus,
in Montgomery, shoulder dystocia was considered a grave consequence of vaginal
delivery of big baby that should have been communicated to the patient. This 10% risk should have been insured against
by letting the patient choose whether to adopt other modes of delivery or to
take the risk. In Sidaway, Lord Scarman
insisted that a less than 1% risk of paraplegia should have been told as the
consequence was grave. For the patient
to make a real and informed choice, the doctor needed to make sure that the
patient understood what the risk was and how avoidable it would be.
Note that the risk here is the inherent
risk of an intervention. Although human
factors do count, we are talking about unavoidable risk even in the best
hands. Stressing on the character or the
skill of the doctor cannot dispense of the requirement of informed consent.
Interestingly, or sadly, I see from
discussion on the recent Medical Council reform proposal that some doctors do
not understand the concept of intrinsic risks and the insurance principle
stressed in the above mentioned string of court cases. To put it frankly, the reform proposal is to
change the composition of the Medical Council.
The purpose of doing so is to facilitate the passing of policies in-line
with the government. This has been
openly announced by a lawmaker and it is not denied by the government. By adding 4 lay members, the composition of
the Medical Council is changed in 2 aspects.
First, the number of lay members is increased while doctors are still in
majority. Second, the number of
appointed members will be in majority by 4 to elected members. It is the change to appointed member majority
that would serve the purpose of railroading government policies.
Those “for” the proposal put forward
arguments mainly on 2 fronts. First,
some appointed members do go through some process of selection. Second, appointed members have their integrity
and would not rubber-stamp proposals by the government. These arguments stand no chance if Montgomery
applies. The intrinsic “risk” of
appointed members is that they are pro-government. It is nothing about right or wrong. The government will naturally select those
expected to behave in-line with it. It
will also keep them for another term and discontinue to appoint those who have
“misbehaved”. Any selection or election
process will not be of much help so long as the members needed to be appointed. To insist that appointing is mere formality
is to ignore the facts in the cases of HKTV and Johannes Chan in the HKU
pro-vice-chancellor selection.
On the other side of the same coin, elected
members are no saints. Voters would have
a natural tendency to elect those behaving in ways beneficial to them. Elected members would have a natural “risk”
of appeasing, or at least not upsetting, their voters especially when the
system allows re-election after members serve their terms.
I am not talking about which kinds of
members are better, nor which forms of election better serve the society. I am looking at changing a balanced council
to one with appointed member majority.
There exists a material risk that decision making by the Medical Council
will be dominated by government policies.
Of course this might not happen.
But this is the intrinsic risk of the system once the composition is
changed according to the present proposal.
I am not sure whether Dr. KO Wing Man needs
to explain to the medical profession about this intrinsic risk. I am not sure whether he needs to make sure
lawmakers understand the consequence before they vote to support the
proposal. I wonder if the lawmakers who
are minority in the Legco and are busy filibustering will agree to a change in
composition of the Medical Council to give the government a majority vote. I envy Alvin YEUNG Ngok Kiu who is elected to
Legco to prevent a foreseeable change to the Rules of Procedure in case there
is a minority created.
Again, it is not about vaginal delivery or
not. It is all about informed consent.
(Source: HKMA News March 2016)
