Montgomery v Lanarkshire - a Step Towards Better Addiction Treatment?

Authored by Helen Hawthorne   

Last year, Montgomery v Lanarkshire heralded a new era in medical negligence cases. While the GMC and medical profession have been ahead of the law for some time, this case may have interesting consequences for addiction treatment and the requirement for the NHS to offer ‘reasonable alternatives’. Community care has been the most prevalent, but perhaps not efficacious, addiction treatment in recent years. Inpatient treatment should now be offered as an alternative to addiction care following Montgomery. This may necessitate increased funds from the NHS, but will provide the best service for sufferers of addiction.
 

The Case

Montgomery v Lanarkshire is a landmark case for medical law, if not quite for the medical profession. The Bolam test for consent is now out and a new era of patient-doctor collaboration has been ushered in. The medical profession recognised the changing winds of patient autonomy years ago, when the GMC issued guidelines requiring doctors to “work in partnership with patients, sharing with them the information they will need to make decisions about their care”.

But it was not until last year that the law caught up, and doctors must now disclose a ‘material risk’ of treatment. It is no longer a defence of non-disclosure to point to other doctors who would have done the same. And importantly, material risk is to be judged from the patient’s perspective, not the doctors. This case may not revolutionise, but it certainly cements, the paradigmatic shift from paternalism to autonomy that has occurred in the medical sphere. 

While much of the discussion and case law has centred around the idea of material risk, the issue of being offered ‘reasonable alternatives’ to treatments may actually be the more interesting avenue arising from Montgomery. A historically deferential judiciary has given way in the light of a rise of patient access to high-quality information and medical scandals to one that is more willing to disagree with the medical profession.

Although the GMC and NHS have been ahead of the judiciary for some time now, this new attitude could signal a willingness to go further than the medical bodies have done. At para.75 of Montgomery it is stated that patients are ‘widely treated as consumers exercising choices’. I suspect this strong statement of patient self-determination goes further than most doctors would like. There is also evidence to suggest that this reframing of the patient-doctor relationship as one in which the doctor acts as an informative repository of medical knowledge is not what patients want either. Nevertheless, it may be indicative that the courts will require a high level of disclosure about alternative treatments to patients’ illnesses in future cases. 

Treatment in whose Hands?

In a study by the University of Huddersfield, over 95% of doctors thought that informed consent was intended to inform patients of risks- but less than 75% thought it was intended to educate patients on alternatives. As the transition from paternalism to patient self-determination takes place, it is to be expected that there will be a delay in the interpretation of informed consent. Alternatives are routinely offered by doctors- and if the most important treatment for a particular illness is refused by a patient, alternatives will naturally be offered by the doctor. However, as this area develops, it will become increasingly important to understand what a ‘reasonable alternative treatment’ actually is. And it will be crucial for doctors to offer these alternatives if they want to ensure a complete and informed consent from their patients. 

As with material risk, this is not news for the medical profession, as both the GMC and the NHS were ahead of the judiciary on their guidance. The GMC offers guidance on the issue of consent, requiring doctors to explain ‘the options to the patient, setting out the potential risks, burdens and side effects of each option’. The NHS has also emphasised patient choice by putting it into one of their seven core principles, that doctors ‘should support individuals to promote and manage their own health’. It is therefore accepted that doctors now have to let patients know about alternative treatments for their illnesses, only underlined by the recent judgment in Montgomery.

The Consequences 

This judgment and the above guidance goes some way to solving the issue of the inherent information asymmetry in the doctor-patient relationship. Doctors will know more about their patients’ conditions and treatment options than a patient, and it will be difficult for a patient to fully evaluate the information they are given. On the other hand, the patient will know more about themselves, and their own values than the doctor ever can. Added to this, navigating the information imbalance on both sides has only become a priority for the medical profession for a small fraction of the time it has existed. Requiring patient access to information goes some way to addressing the imbalance. In addition, it helps incentivise doctors to be aware of the newest treatments in their area. Both of these factors will add to the net positive effect of better care for the patient.

What this means for mental health care in particular is uncertain, but hopeful. While an astounding 1 in 4 people have experienced mental health problems, the social stigma and NHS underfinancing of this area of health is indisputably still a very real problem. Mental health services in particular have suffered greatly from paternalism, where a combination of wilful societal ignorance and medical adherence to a strict definition of the ‘normal’ patient, meant that patients who could make their own decisions had medical will imposed on them. Even now this can be problematic. Combined with the exacerbation of the doctor-patient information asymmetry by patients who may have more trouble understanding complex or lengthy information, it is not difficult to see how those suffering from any kind of mental health problem in our system might be underserved.

However, at para.75 of Montgomery, it is recognised that treatments are not just offered on a clinical basis ‘but upon bureaucratic decisions as to such matters as resource allocation, cost-containment and hospital administration’. As doctors are under increasing financial pressures, the bureaucratic element of their recommendations as to treatment is somewhat alleviated by the requirement to inform patients of alternative treatments. This is particularly important when mental health care, the so-called ‘Cinderella service’, has seen deep cuts and chronic underfunding in the last few years.

Finally, I turn to the oft-overlooked and negligibly funded sector of even the Cinderella service, that of the addiction service- which has the particular ignominy of being the only major mental health illness specifically excluded from disability protection. Importantly, paragraph 75 explicitly states that the ramifications of the Montgomery judgment are not just limited to doctors, but to ‘other healthcare providers’ as well. This will have a particular effect on addiction care, where it is common for alcohol workers or mental health teams, who are not doctors, to make decisions on treatment.

With an emphasis on community care, patients with addiction may have only been offered outpatient treatments such as home detoxes and outpatient counselling for their illness. Under Montgomery, residential rehabilitation- which studies have shown can be more effective for some people- could be considered a reasonable alternative treatment of which patients should be informed. Armed with this knowledge, patient demand for a better service may become too great for healthcare workers and government alike to ignore.