Claudia Preiss

Historically, there has been a paternalistic approach to deciding patient care; the medical professional makes the treatment decisions on behalf of the patient. It was thought that, if patients are less educated than medical professionals about every risk or benefit of a treatment, they are less equipped to make decisions concerning their care.

However, this paternalistic approach led to a failure to educate patients about their treatment and did not consider that different patients may desire different outcomes. Nowadays, with limited exceptions in emergency situations, medical professionals are under a duty to acquire consent from informed patients in order to treat them. Failure to do so may constitute medical negligence.

A series of Supreme Court cases have since established the law’s position on what must be communicated to patients for consent to be informed. Arising out of this were the answers to two key questions: what risks should the patient be made aware of, and what alternative treatments should they be offered?

Montgomery v Lanarkshire Health Board (2015) established that patients must be informed of material risks and that reasonable care should be taken to ensure patients are aware of any reasonable alternative or variant treatments. The judgement defined ‘material risks’ as something which a reasonable person in the patient’s position would be likely to attach significance to, or something which the doctor is or should reasonably be aware that a particular patient would be likely to attach significance to.

This means defining material risks for informed consent is a patient-centred determination. Later, in McCulloch v Forth Valley Health Board [2023], the court clarified that reasonable alternative or variant treatments are determined by a responsible body of medical opinion. This means patients are not legally entitled to be offered alternative treatments beyond what medical opinion deems to be reasonable. However, patients should be made aware of risks which the reasonable patient would deem material, as Montgomery is still authoritative on this point of law.

Effective communication with medical professionals is the key to exercising the right to informed consent. Patients should consider the following advice in their approach to healthcare conversations.

Before an appointment, prepare a list of your concerns, questions and preferences, but try to avoid using AI in doing so. Consider taking a trusted friend or relative along to take notes, prompt questions, and to ensure you retain important information. During an appointment, remember to ask questions to help you to understand the proposed treatment. Ask your healthcare provider to repeat if you do not understand, and don’t feel embarrassed to say if the message is not clear. You may ask if there are any other treatment options available to you. To identify any misunderstandings, you can repeat back to your healthcare provider what your understanding of the treatment is.

For significant decisions, it may also be helpful to tell your healthcare provider about your daily life, your fears, and what matters most to your quality of life. Lastly, you may request a copy of the clinic letter detailing the proposed treatment options, or an information leaflet to consider at home.

These tips can help patients put the legal principles established in Montgomery into practice, supporting clearer conversations and informed decisions.

Claudia Preiss is a trainee solicitor at Balfour and Manson. This article first appeared in The Scotsman.