This article originally appeared in Issue 4 (March 2020).
The Outer House of the Court of Session found that the Pursuer/Claimant (“J”) had given informed consent to the transsphenoidal surgery he underwent and dismissed J’s claim for damages brought against the health authority.
J suffered from a condition called acromegaly, which occurs when the pituitary gland produces excessive growth hormone and which manifested itself in acute and worsening arthritis. In 1980 he underwent transsphenoidal surgery to remove a benign tumour in his pituitary gland in order to attempt to cure his acromegaly. The surgery was initially considered to be successful and J continued to be monitored annually by the health authority’s endocrinologist (“B”). However, after a few years J’s level of growth hormone was found to be consistently in excess of the reference range, even after being prescribed medications to reduce his hormone levels.
In 2004, some 24 years after his initial surgery, an MRI scan showed an enlarged pituitary fossa and by that stage his hormone levels were at times more than twice the maximum level within the normal range. In 2010, a further MRI scan showed that there had been no change from the 2004 scan, indicative of a persistent pituitary adenoma. After discussion at a multidisciplinary team meeting, B wrote to the consultant neurosurgeon (“K”) requesting an opinion as to whether repeat transsphenoidal surgery or radiosurgery (an alternative procedure) would be appropriate. K advised that surgery should be explored prior to radiosurgery, which might not be suitable for J. In September 2010, K met with J to discuss the medical problems and available options. Although there is a dispute as to precisely what was discussed and in what detail, following that meeting, it was agreed that J would be put on the waiting list for surgery, which was carried out in January 2011. On the morning of the operation, J signed a consent form but there is a dispute as to what extent any explanation or information was given to J on that occasion, and whether any explanation was given specifically by K (as opposed to the registrar who formally consented J).
During the operation carried out by K no tumour was found. A few days later, J became unwell and was re-admitted to hospital where he was diagnosed with a post-operative CSF leak and meningitis. J’s acromegaly has since been managed conservatively without further surgery and he requires medication for the rest of his life.
J brought a claim against the health authority on the basis that the consent given by him in September 2010 and again on the morning of the surgery was not given on the basis of full or sufficient information about the potential risks of the surgery, the alternative treatments available and the risks and benefits of those alternatives, including the option of doing nothing. J alleged that the health authority was vicariously liable for the breaches of duty on the part of B and K to obtain valid informed consent.
Lord Glennie held that J had been given sufficient information as to the treatment options by both B and K in compliance with the Montgomery duty of care so that the health authority was not vicariously liable for any failure on the part of either B or K to obtain valid informed consent.
As Lord Glennie explained, although the medicine in this case was complex, the issue in this case was a relatively straightforward one of whether informed consent had been validly obtained .
However, the judgment provides some very useful discussion in relation to a number of issues which arise in informed consent claims, which has become more common post-Montgomery. The following five issues should be of particular interest to both claimants and defendants dealing with Montgomery claims.
1. Importance of contemporaneous documentary evidence
In determining whether there has been valid informed consent, the court has to consider all available written and oral evidence to assess the credibility of the competing accounts as to what information was given for the purpose of obtaining consent. In this case, the court’s assessment of credibility and reliability was hindered by the passage of time, with J not having any contemporaneous documentary evidence (such as a diary entry or notes to aid recollection) prior to his formal complaint made some two and a half years after the index events.
B and K were in a better position having the benefit of the contemporaneous medical records and notes which indicated that J had been advised about both options (surgery and radiosurgery). B’s contemporaneous notes were of particular importance as he was unable to given oral evidence, due to the state of his health.
Lord Glennie acknowledged that the contemporaneous medical notes had not been made for the purpose of litigation and therefore were devoid of the level of detail necessary to inform a forensic analysis of precisely what took place. The recognition that medical records and contemporaneous notes will not necessarily be as detailed as an account or statement prepared for litigation will be of some comfort to defendants concerned
about having to practice defensive medicine. K was not criticised for not writing to patients to set out in detail the diagnosis and treatment plan, a practice he stopped when a patient complained that the letter was full of incomprehensible medical terminology [48(iv)].
Further, Lord Glennie held that whilst the GMC Guidance on Consent set out good practice and informed the content of Montgomery duty of care, it was not prescriptive of the precise steps a doctor should take in his dealings with the patient (such as recording key elements of the discussion between patient and doctor). It was not for the court to police the Guidance and any alleged breach of the Guidance should be taken up with the GMC accordingly .
2. Issues-based consideration of credibility
In this case, however, it was not simply a matter of determining that a particular witness was inherently more credible than the other and therefore all of the evidence of that witness was reliable. Lord Glennie cautioned against such an approach and made clear that he was satisfied that all of the witnesses before him were doing their best to tell the truth. Rather, questions of reliability had to be decided on an issue by basis. Indeed, although ultimately finding in favour of the health authority, Lord Glennie favoured the evidence on behalf of J in relation to some issues (e.g. finding at  that K himself did not speak to J and his wife on the morning of the surgery).
3. More difficult if it is a stand-alone Montgomery claim
This case demonstrated the difficulties and risks in advancing a stand-alone Montgomery claim without any Bolam allegations of negligence.
There were no allegations that the diagnosis made (that J had a tumour, which required active treatment) was negligent. Lord Glennie held that the fact that the diagnosis was not challenged meant that it was difficult for J to argue that he should have been advised as to the option to do nothing about a condition that had been diagnosed as requiring active treatment.
The fact that neither the diagnosis or the actual surgery or post-operative care were challenged on a Bolam basis also meant that the extensive expert evidence relied on by both parties was of limited relevance to the central issue of consent .
4. Vicarious liability only without allegations of direct liability is risky
Somewhat curiously, the claim against the health authority was based on vicarious liability only rather than any allegation that the authority was directly responsible for ensuring or taking reasonable care to ensure that J was made aware of all material risks associated with surgery, and of all reasonable alternatives. This meant that J had to establish that either B or K personally failed to provide sufficient information.
The potential risk to a claimant advancing such a case was illustrated by way of a hypothetical example where both B and K reasonably believed that the other had given J the relevant information then the defendant would escape liability (§132). Although it was not determinative of the instant case, it is a good reminder to claimants not to limit their case to that of vicarious liability.
5. Establishing causation is not straightforward
Even if J had established that there was a failure to provide him with sufficient information to make an informed decision, Lord Glennie explained that he would have found that he probably would have chosen surgery (instead of radiosurgery or doing nothing) in any event, particularly given that he had previously had the same procedure 30 years earlier. Therefore, success at the first hurdle of breach does not guarantee success at the second hurdle of causation in a Montgomery claim.