Intellectual disability and informed consent – The judgment in Montgomery v Lanarkshire (Scotland) 2015

Note: In the UK, the term of ‘Learning disability’ is used instead of ‘Intellectual disability’.

To read on The Pharmaceutical Journal website:

The implications of the Montgomery judgment on pharmacy practice and patients with learning disability

Abstract

The judgment in Montgomery v Lanarkshire (Scotland) 2015 introduced a new definition of informed consent which has implications for all healthcare professionals. This article focuses specifically on the implications for pharmacy practice and patients with learning disability. During consultations, both pharmacist prescribers and non-prescribing pharmacists must adhere to the provisions of the judgment to ensure patients provide informed consent. Particular issues arise where patients with learning disability are concerned because the Accessible Information Standard (AIS), which came into force in England in August 2016, must also be considered. Consequently, easy-read material should also be of a standard and quality relevant to that particular individual. In addition, this article will briefly consider whether information should always be disclosed.

Montgomery v Lanarkshire

Source: BSIP SA / Alamy Stock Photo
The judgment in Montgomery v Lanarkshire (Scotland) 2015 introduced new definitions on the subject of information disclosure and informed consent which have implications for all healthcare professionals and their patients with learning disability

Introduction

A recent article by Barnett and Sokol outlined the judgment of the Supreme Court in the Montgomery v Lanarkshire Health Board (Scotland) 2015 case[1],[2]. Their article focused on the sea change in information disclosure to patients from healthcare professionals, which confirmed both previous case law and the General Medical Council (GMC) guidelines and which puts the patient at the heart of the decision-making process, where “patients are now regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession”[2],[3],[4].

The judgment in the Montgomery v Lanarkshire Health Board case has implications not only for non-medical prescribing pharmacists, but also for the wider practice of pharmacy consultations with patients, including those with learning disability.

This article will consider, in the light of the judgment in Montgomery, information disclosure within pharmacy practice for patients with learning disability. It will consider this against the background of the Accessible Information Standard (AIS), introduced in August 2016 in England, which applies to all providers of adult health and social care[5]. Provisions differ only slightly for Scotland, Wales and Northern Ireland[6],[7],[8]. Finally, this article will also consider whether pharmacists may, with increasing frequency, rely on “therapeutic exception” in circumstances where creating a climate of informed consent with patients who have learning disability and complying with Montgomery will lead to concerns that such information will potentially affect psychological and/or physical health and wellbeing.

Applying Montgomery to patients with learning disability

This article focuses only on patients with learning disability who have capacity. It is important to remember that having a learning disability does not mean that a patient lacks capacity to consent to medical treatment, and the presumption of capacity, which can be rebutted, is enshrined in the Mental Capacity Act 2005 [MCA][9]. In Scotland, patients who lack capacity are treated under the Adults with Incapacity Act 2000[10]. Equally, when a patient refuses to be treated or makes an unwise or bizarre decision, it does not mean that the patient lacks capacity per se, although there is a fine line to be drawn between respecting a patient’s bizarre decision to refuse medical treatment and situations that represent a “misconception of reality”[9],[11].

Montgomery rejected, in its entirety, the Bolam standard of care in information disclosure, which, when applied, stated that a healthcare professional would not be negligent if they are “acting in accordance with such a practice, merely because a body of opinion takes a contrary view”[12]. Therefore, prior to Montgomery, if a pharmacist failed to disclose a specific risk but their opinion was supported by a body of similar opinion, they would not be negligent even if there was a body of contrary opinion.

The test outlined above has now been rejected by the decision in Montgomery, which puts the “ordinary sensible patient” at the centre of the decision-making process, thus empowering the patient to engage with medical treatment. The judgment now imposes a duty on all those who treat patients in the healthcare sector, including pharmacists, to “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 treatment”[2]. Only once this is achieved will a patient be able to provide informed consent to treatment.

According to the MCA, provided that a person can understand the information relevant to the decision to be made, retain that information, use the information as part of a decision-making process and communicate their decision by any means, that person is deemed to have capacity[9]. Moreover, the MCA is explicit that any decision regarding capacity should not be based on a person’s appearance, whether they appear dishevelled or may display characteristics of a learning disability, for example a person with Down’s Syndrome[9]. Factors such as their appearance, long-term health conditions and any aspect of their behaviour is not relevant to the decision as to whether a person has capacity, provided the criteria outlined above can be met.

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