Malik v St George’s University Hospitals NHSFT [2021] EWHC 1913 (QB)

This was a claim about spinal surgery, specifically whether a revision decompression at T10/11 was appropriately advised and whether the Claimant had been adequately advised of reasonable alternative or variant treatments to the surgery which ultimately worsened rather than improved his condition. As such, it engaged not only the principles outlined in Bolam and Bolitho but also Montgomery and is one of a relatively small number of cases since that decision in which a judicial application of the Montgomery principles has been required [see the author’s previous analysis of Montgomery cases here]. In the event, the claim as to both the selection of surgery and the counselling of risks and alternatives was rejected; nonetheless, the decision casts light on how Montgomery may be applied in practice and in particular the requirement to advise of “reasonable alternative” treatments.

The Claimant had a history of spinal problems which deteriorated markedly in July 2014 leading to admission to hospital. He was seen by the Defendant’s consultant neurosurgeon, Mr Minhas, who diagnosed compression of the spinal cord at T10/11 and L3/4. Surgery was performed at T10/11 only. The Claimant’s recovery was slow and incomplete such that he saw Mr Minhas again in April 2015 and an MRI scan was commissioned. The Claimant was reviewed by Mr Minhas again in July 2015 with the scans; there was a factual dispute as to whether the Claimant reported intercostal pain at that review as suggested by the records. Revision surgery to T10/11 and primary surgery at L3/4 was offered. There was dispute as to how the risks of the surgery were discussed but it was common ground that alternatives to surgery in the form of nerve root injection and/or a pain management programme were not discussed.

The judge preferred the factual evidence of the surgeon as to what symptoms were complained of in July 2015 and in particular that severe intercostal pain was part of the presentation. Against this finding, it was common ground between the surgical experts that it was reasonable to offer surgery – that dealt with the Bolam/Bolitho point. As regards consent, the judge found that whilst the surgeon had not offered or discussed the alternative treatments in question, this was not a breach of duty since “I consider that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion that the claimant had with Mr Minhas.” [93]. The judge went on to find that even if the Claimant had established a breach of duty in respect of consent, he would have failed on causation since “The claimant has not satisfied me on a balance of probabilities that he would have declined the offer of having surgery in August 2015 if an injection (or any of the other mooted options) had been explained to him by Mr Minhas, with what were Mr Minhas’ perfectly respectable opinions as to their respective risks and chances of providing any desired benefit. Equally I am not satisfied on a balance of probabilities that Mr Malik would have sought another opinion or delayed making his decision.” [95].

The judge’s reasoning in dismissing the consent claim on breach is interesting. The Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11 held: “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor 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 “ [87] and “the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision.” [90]. The Defendant’s surgical expert in Malik is recorded at [77] as giving evidence that “although some spinal surgeons would try an injection first, another perfectly reasonable group would consider it as causing an unnecessary delay in a curative procedure…”. That would appear to suggest that the Defendant’s expert would accept that offering an injection would itself have been supported by a “perfectly reasonable group” of surgeons and therefore to have been a “reasonable” treatment in the sense of Bolam/Bolitho compliant. Was injection therefore a “reasonable alternative” treatment of which Mr Minhas was obliged to advise the patient? In the decision of the judge, it was not, since a reasonable body of surgeons would have formed the view that injection was not a reasonable treatment.

It may be argued an approach whereby the individual clinician determines the menu of reasonable treatments of which to make the patient aware, risks undermining the emphasis on patient autonomy and choice as set out in Montgomery. Conversely, it may be asked – what other way could it be? The treating clinician will inevitably have to form some view as to what the (reasonable) treatment options are and there must therefore be some test for determining the legitimacy of that view; it is difficult to see a workable alternative to the Bolam/Bolitho in those circumstances.

The court in Bayley v George Eliot Hospital NHS Trust [2017] EWHC 3398 faced a similar argument in relation to whether the option of ilio-femoral venous stenting should have been presented to a DVT patient; the court appeared at [61] to accept the submission that the issue of what was or was not a reasonable alternative treatment was not to be determined by the doctors alone otherwise this would be “introducing Bolam by the back door and in effect depriving the patient of the right to choose.” However, whilst adopting a wider approach involving consideration of “all the relevant evidence” as to whether the treatment was a reasonable alternative (in apparent contradistinction to a Bolam approach of determining whether a reasonable body of clinicians would agree that it was not), the judge ultimately found that the treatment in question was, at the time “unproven” and “a long way off being appropriate” and dismissed the claim.

It is however easy to imagine situations where a decision to categorise a treatment as not being a “reasonable alternative” and therefore not to at least make its existence known to the patient would be controversial. For example, take two forms of treatment (“A” and “B”), each with its own adherents who each regard the other school as unreasonable. Dr Smith favours treatment A but knows that within her department Dr Jones favours treatment B. Is Dr Smith obliged to make her patients aware of treatment B? The decision in Malik would suggest not, whereas the more nuanced or holistic approach in Bayley might suggest otherwise (despite the failure of the claim in that particular case). It would be interesting to know what the Supreme Court would have said about that, had they been required to express an opinion.

Explore the QMLR archive of articles on consent here.

Matthew Barnes acted for the Defendant in this case. He was not involved in the writing of this article.