Four elements of the Montgomery model of consent

Some commentaries have tended to focus on what Montgomery has to say about risk disclosure. This is important, but is only one of four key elements of its model of consent. We shall look briefly at each of these as summarised in Box 2 and then indicate how they come together in shared decision-making.

Consent in Montgomery starts with disclosure of ‘material risks’. Under Bolam rules, what is material is a matter primarily for professional judgement. This is why two lower courts rejected Mrs Montgomery's claim for damages. In deciding against warning her patient about shoulder dystocia Dr McClelland, they concluded, had acted consistently with the practice of a body of her peers. The Montgomery judges, however, took a very different line. Contemporary standards of practice, they argued (as represented in particular by GMC guidance such as Good Medical Practice (General Medical Council 2013)), demand an approach that defines the materiality of a risk from the perspective primarily not of the clinician but of the patient. They summarised their patient-focused test of materiality thus:

This is an important passage. But there is more to consent in Montgomery than just risk disclosure so defined. ‘It follows from this approach’, the Montgomery judges continue, that the materiality of a risk:

This in turn means, they continue in the next paragraph, that the doctor's role:

The model of consent thus defined is not a legal invention. The Montgomery judges based it on submissions by the GMC. They cite, in particular, GMC guidance on shared decision-making as the basis of consent (General Medical Council 2008, para 5):

Read in isolation this passage might suggest a consumerist model of consent in which (like a customer in the retail trade) ‘the patient is always right’. Montgomery, though again reflecting professional guidance, makes clear that this is not what is intended. The patient's values (i.e. what matters or is important to the patient) are indeed at the heart of clinical decision-making in Montgomery. But in coming to a shared decision, the patient's values have to be weighed in the balance with a number of other values, including those of the clinician.

The importance of clinicians' values in Montgomery is signalled first in a number of exceptions to the duty to disclose material risks. These are summarised in Box 3. Two of these exceptions (‘risk of harm’ and ‘necessity’) directly reflect the long established ‘primum non nocere’ (first do no harm) principle of medical ethics.

Montgomery further reflects medical values in restricting the options that the doctor is obliged to consider to those that are ‘reasonable’ (para. 87). Options that are ‘futile or inappropriate’ (para. 115) are thereby excluded. Just who decides what is futile or inappropriate is left unstated. But there is a clear commitment to the medical value of scientific evidence in the Montgomery judges' appeal to evidence-based guidelines from the Royal College of Obstetricians and Gynaecologists (para. 112) and from the National Institute for Health and Care Excellence (NICE) (para. 116). Still other balancing elements implicit in Montgomery include the values of other team members (para. 75) and of the wider society as represented by health economic and other strategic values (para. 75) bearing on the effective and equitable delivery of healthcare.

The shared decision-making therefore underpinning consent in Montgomery depends on balancing what is important to the patient concerned as the primary value driving clinical decision-making against the values of the clinician and others. The patient, as the Montgomery judges put it, is entitled to have their values ‘take[n] into account’ (para. 115). Taken into account, then, weighed in the balance, no more. But also no less – it was precisely because Mrs Montgomery's values were not taken into account that the Montgomery judges overturned the findings of two lower courts and allowed her appeal. So there is a balance to be struck. This is where values-based practice has a role to play.

A worked example

Raised awareness is the starting point for all values-based training (Woodbridge Reference Woodbridge and Fulford2004). Our natural tendency is to assume that we understand each other's values. But all too often we are wrong. So it is important clinically to find out what is important to our patients. Otherwise we will not be in a position to ‘take into account’ our patients' values in the process of shared decision-making required by Montgomery.

The exercise shown in Box 5 is a forced-choice exercise. You may want to try this before reading on. Like other skills-based areas of medicine, values-based practice is better understood by trying it for yourself rather than just reading about it.

Mostly people don't find it easy! This is part of the message. But the main message is in the extraordinary range of answers people give. The range shown in Fig. 2 is from a seminar with a group of clinicians, but it is typical. Just 41 people's answers range from under 6 months to over 80 years. In training sessions, people are often really surprised by the answers that other group members – even people who know each other well (Handa Reference Handa, Fulford-Smith and Barber2016) – come up with. If you tried the exercise, where did your answer come? Think about why you chose the period you did and why others choose very different periods.

FIG 2

Results when the forced-choice exercise described in Box 1 was completed by a group of 43 clinicians.

In plenary discussion, the group quickly came to see that their wide range of answers reflects a correspondingly wide range of their individual values. For some people what was important was to complete a key project (a PhD, for example): so their minimum period was quite short (under 6 months in this case). For people with young families, on the other hand, their priority was to last long enough to see their children safely grown up: so they needed a minimum of 10 or more years. Still other people opted for the 50:50 ‘kill or cure’ option regardless. Two people in this group said they would ‘want it over with’ rather than facing a definite date of death, however far away.

The messages then are that, yes, our individual values really are very different one from another, and no, we can't assume we know what matters even to people we know well (let alone, therefore, the patient we met for the first time a few minutes ago). All this in turn plays out in clinical decision-making. In this forced-choice exercise everyone has the same evidence base. They have indeed an artificially simple evidence base. Usually the evidence is more complex and ambiguous than in the imaginary scenario in the exercise. Also, equivalent choices made for real are that much more challenging for being emotively charged. Yet this is what is demanded of patients in the shared clinical decision-making required by Montgomery.

Raising awareness, as we have indicated, is only the start. But it is a useful start clinically. In the next section we look at how values-based practice, in raising awareness of differences of individual values, supports shared decision-making in psychiatry. We consider two examples, recovery practice and compulsory treatment, representing contrasting balances of values.

Recovery practice

The importance of values in recovery practice in psychiatry has been widely recognised for some time (Anthony Reference Anthony1993; Baker Reference Baker, Fee and Bovingdon2013). ‘Recovery’ in this context means shifting the focus of treatment from the professional's concern with symptom control to recovery of a good quality of life as defined from the perspective of the individual patient concerned (Allott Reference Allott, Loganathan and Fulford2002). Although ‘recovery’ is a contested notion, it can be linked to experiences of inequality and injustice (Harper Reference Harper and Speed2012), which are likely to be mitigated by an appreciation of the validity of different values if this produces genuinely shared decision-making.

This is therefore a shift of values. Recovery practice involves a shift in focus from what is important from the perspective of the professional to what is important from the perspective of the patient. This shift can be difficult to put into practice, partly it seems because clinicians’ values may differ from those of patients, as shown by Thornicroft et al (Reference Thornicroft, Farrelly and Szmukler2013), who found that implementing joint decision-making in practice was hard to achieve. As already indicated, individual values are highly variable. But epidemiological and other research suggests that, where professionals are by and large concerned with such matters as diagnosis, symptom control and risk management, patients (particularly those with long-term complex conditions) are more concerned with housing, employment and personal relationships. Therefore, recognising these differences and developing the further values-based skills to work with them successfully are a key to recovery practice (South London and Maudsley NHS Foundation Trust 2010). Importantly, this may involve other members of the multidisciplinary team – such as nurses and social workers – whose values may be different again. So the skills needed for values-based interprofessional care may also be important to recovery practice.

This is why values-based practice has for some time been a core theme in recovery (Roberts Reference Roberts, Dorkins and Wooldridge2008; Slade Reference Slade2009). Montgomery indeed makes what is, in all but name, recovery practice the basis of consent in psychiatry. However, the challenge in Montgomery, as in recovery practice, is that the shift of values underpinning both is not absolute. It is a shift only in the balance of values. This may be challenging enough in recovery practice (as with ‘positive risk management’ for example (Robertson Reference Robertson and Collinson2011)). It becomes critical with compulsory treatment.

Compulsory treatment

The connections between the Montgomery ruling and mental health legislation have yet to be tested through the courts. There is, after all, something of a contradiction in the idea of applying standards of legal consent to non-consensual treatment. But as things stand, it seems likely that Montgomery applies to any capacitous patient whether treated under the (non-capacity-based) Mental Health Act 1983 or not. Moreover, consent is required for certain types of treatment for mental disorder administered under Part IV of the Act (as amended in 2007): psychosurgery under section 57, administration of electroconvulsive therapy (ECT) to a capacitous patient under section 58A and, under section 58, prolonged medication when the patient has capacity. So Montgomery has an important role to play in these situations. This is emphasised by the Mental Health Act Code of Practice (Department of Health 2015), which in paras 24.36 to 24.39 deals with the provision of information. For instance,

However, even when compulsory treatment is administered under section 63 (Treatment not requiring consent), the Code of Practice at para. 24.41 stipulates that the patient's consent should still be sought ‘where practicable’, suggesting that the Montgomery ruling should be relevant and reflected in good psychiatric practice (and see Yousif Reference Yousif2016).

Montgomery thus requires a balance of values with non-consensual compulsory treatment (of a capacitous patient) under the Mental Health Act just as it does with consensual treatment (of a capacitous patient) in recovery practice. Non-consensual treatment decisions are, by definition, not based on agreement between clinician and patient. But using a values-based approach they may nonetheless be shared decisions in being made within a framework of shared values. The Mental Health Act, moreover, comes with an in-built framework of shared values provided by the guiding principles in the Code of Practice (Department of Health 2015: pp. 22–Reference Roberts, Dorkins and Wooldridge25). These principles directly reflect the Montgomery requirement that the patient's values should be at the heart of decision-making. They stipulate:

• • the need for independence and the promotion of recovery

• • participation and involvement

• • recognising and respecting ‘the diverse needs, values and circumstances of each patient’

• • that the purpose of treatment is to address the individual patient's needs, ‘taking into account their circumstances and preferences where appropriate’

• • recognising ‘as far as practicable […] the patient's wishes’.

Training materials based on these guiding principles developed by the Department of Health to support implementation of the Act had the aim of limiting the use of compulsory treatment (Fulford Reference Fulford and King2008). Since implementation, however, there has been growing concern that the number of detained patients has actually risen, with potentially adverse effects on clinical outcomes (House of Commons Health Committee 2013). One explanation for this rise in compulsory treatment is that concerns about safety have in practice outweighed the patient-focused values expressed in the guiding principles (Fulford Reference Fulford, Dewey, King, Sadler, van Staden and Fulford2015). Meanwhile, there is evidence that advance statements lead to ‘a statistically significant and clinically relevant 23% reduction in compulsory admissions in adult psychiatric patients’ (de Jong Reference de Jong, Kamperman and Oorschot2016), suggesting that acknowledging the patient's views and values is beneficial. Applying Montgomery therefore to compulsory treatment, supported by a values-based approach to balanced decision-making within the guiding principles, could help to reduce use of compulsion and thereby improve clinical outcomes.

In any case, Montgomery argues powerfully in favour of a manner of approach to patients. Patients are seen as persons with rights and values, which must be acknowledged and respected. On the one hand, therefore, practitioners should be willing to accept some risks in order to respect (as Lady Hale in Montgomery described it) ‘a person's interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body’ (para. 108). Taken seriously, this might even lower the tendency to instigate treatment under compulsion. On the other hand, even if compulsory treatment is given, it should be given with as little restraint and with as much real respect as possible.