Informed consent: clarifying the post- Montgomery duty of care to discuss "reasonable alternative treatment"

Prof Gilberto KK Leung (gilberto@hku.hk) Full paper in PDF Many doctors have become concerned and unsure about the standard of care required of them in obtaining informed consent following the United Kingdom Supreme Court decision in Montgomery v Lanarkshire Health Board ('Montgomery').1 This article aims to provide an update on the relevant common law positions, clarified helpfully by the same court in McCulloch v Forth Valley Health Board ('McCulloch') in July 2023.2 The case of Montgomery established that a doctor must '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.' The case eventually went to the Supreme Court, which found for the defendant cardiologist based on expert opinions in support of her practice, and took the opportunity to clarify that: * whether a treatment is a reasonable alternative is determined by applying the 'professional practice test', ie, whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion4; * a doctor is not negligent in failing to discuss a treatment option if the doctor's opinion that the treatment is not reasonable is supported by a reasonable body of medical opinion; * the doctor is also not negligent in this regard even if the doctor is aware (or ought to be aware) that another reasonable body of opinion would consider that treatment option to be reasonable (and therefore warranting discussion with the patient); * once the doctor has applied the professional practice test and decided on a range of reasonable treatment options, the patient should be informed of all of those options; the doctor cannot simply discuss only the option(s) that the doctor prefers; and * the doctor must inform the patient of the respective advantages, disadvantages, and material risks associated with the treatment option(s) which the doctor considers reasonable. [...]it is important to mention thatMcCulloch and Montgomery, both post-1997 Supreme Court decisions, are persuasive or highly persuasive, but not binding, in Hong Kong.