In 2015 the Supreme Court handed down a landmark judgment in the case of Montgomery -v- Lanarkshire Health Board [2015] UKSC 11, which clarified the law in relation to informed consent - patients must be warned of any ‘material risk’ of any procedure and advised of any reasonable alternatives.

Three years on, there is still very little guidance for practising doctors as to the extent of what ‘reasonable alternatives’ they should discuss with their patients.

Guidance on reasonable alternatives

Suzanne Maher discusses the implications of the judgment in the case of Bayley –v- George Eliot Hospital NHS Trust [2017] EWCH 3398 (QB) and the useful guidance it provides with regard to the consideration clinicians should give to discussing ‘reasonable alternatives’ when consenting their patients for treatment. In this case, the claimant claimed that her treating clinicians should have advised her of all treatment options, including those available to her outside of the UK. Specifically, it was alleged they had failed to advise her that her DVT could be treated by an iliofemoral venous stent.

HHJ Worster highlighted that there was a lack of published papers in the United Kingdom regarding iliofemoral venous stenting, there was scant evidence of where the procedure was being undertaken in the UK or who was undertaking it. That was not to say that it was not being undertaken, but the point was how would a reasonably competent vascular surgeon hear of it? Whilst there were published papers from the United States which held out some promise, there was a lack of control and follow up, and the procedure did not appear to be in use other than in a few specialist centres – it was nowhere near being an accepted practice.

On this basis HHJ Worster rejected the claimant’s argument.

His decision as to what constitutes ‘reasonable alternatives’ can be summarised as follows:

  • what is a reasonable treatment option must depend upon the patient, their treatment and prognosis (amongst other things)
  • an alternative treatment option must be within the knowledge of a reasonably competent clinician (i.e bolam standard)
  • the alternative treatment must be an accepted practice
  • the alternative treatment must be an ‘appropriate treatment’ and not just a ‘possible treatment’

Conclusion

In summary, in the circumstances of Bayley there was not enough known about the procedure (which the claimant states should have been advised of) by the reasonably competent vascular surgeon at the time, for it to be Montgomery-negligent to fail to inform the claimant about it. Therefore, the claimant’s claim was dismissed.