We now move on to the first limb of the materiality test. This limb foregrounds a reasonableness criterion that is to be understood through a particular lens: the patient’s standpoint in the treatment context. A full understanding of this limb of the test requires careful consideration of what legal and ethical work is being done by the notion of the ‘reasonable person’ here, and how this account is to be qualified by adopting a patient-centric standpoint.
In order to make progress on considering how the ‘reasonableness’ criterion ought to be made sense of, we outline what we consider to be the three most feasible interpretations of this limb of the test. To develop our understanding of this criterion, we consider a range of English and Australian jurisprudence, and reflect more broadly on approaches that have been adopted to formulating the ‘reasonable person’ standard in the law of medical negligence.
Interpretation 1: Reasonable as Commonly Held
The first interpretation of the ‘reasonable person’ standard is to replace one community standard (that of the body of expert medical opinion) with another—that of the body politic. This account of the reasonable person can be expressed formally:
RP
M
It is reasonable to inform a patient of risk that the majority of people think ought to be disclosed in these circumstances
At first glance, this is an intuitively persuasive interpretation of what the ‘reasonable person’ standard would require. RP
M is essentially an empirical account of what most people would do, if they were to find themselves in the patient’s situation. Moreover, there is some limited evidence that the judges in
Montgomery approached the specification of this limb of the test in this way. In potential support of this position, Lords Kerr and Reed state:
No woman would, for example, be likely to face the possibility of a fourth degree tear, a Zavenelli manoeuvre or a symphysiotomy with equanimity… This conclusion is reinforced by Dr McLellan’s own evidence, that she was aware that the risk of shoulder dystocia was likely to affect the decision of a patient in Mrs Montgomery’s position (para. 94).
Although it is not articulated explicitly in this quoted passage, one credible interpretation of what is meant here is to equate what the ‘reasonable person in the patient position’ would expect by considering what women would expect, as a matter of empirical fact, if they found themselves in Mrs. Montgomery’s position. If the majority of these women would expect such information to be disclosed, then, on this formulation, it would be unreasonable to withhold it from Mrs. Montgomery.
When looking to attempts to formulate and adopt the ‘reasonable person’ standard more generally in medical negligence law, however, there is no support for this empirical approach to determining the ‘reasonable person’ approach to the application of law. For example, there is no evidence of judges looking to gather data of this kind, or to present even anecdotal statistics about how the majority of patients would conceptualise the significance of risk across different treatment scenarios. This is unsurprising; such an exercise in collecting evidence of this kind in order to specify the content of what it would be reasonable to disclose would arguably be beyond the responsibilities of a judge.
It should also be pointed out that the general consensus within the philosophy of law is the view that a significant reason for invoking the ‘reasonable person’ standard is to signify a decisive shift in legal regulation away from reliance on the (potentially unreasonable) views held by most people in a society or community group. In this sense, the reasonable person standard is needed so as to avoid relying on popular opinion; it cannot be articulated, therefore, by grounding itself in the cut and thrust of the majority view [
22].
Importantly, there is a justificatory history to the standard interpretation of the ‘reasonable person’ in English law that serves to resist RP
M. In negligence law, and particularly in professional negligence cases, the reasonable person has been specified by reference to a particular kind of reasonable individual: the ‘man on the Clapham omnibus’. It is not accidental that this version of the standard refers to one individual rather than a community of people (e.g. ‘the men and women on the Clapham omnibus’). Rendering the reasonable person in terms of a particular individual clarifies that reasonableness is a feature of (some kind) of a typical, rather than communal, account of what it would be reasonable to do in the relevant circumstances [
44]. Precisely what a typical account of reasonableness consists in, in this legal context, is where we now turn.
Interpretation 2: Reasonable as Logically Coherent
A shift away from an attempt to specify the ‘reasonable person’ in terms of a modified communal standard leads us to interpretations that seek to connect reasonableness with
justification of particular kinds. One justificatory account of reasonableness would seek to consider the rationality of a decision made, or a belief held, by the patient in question. Applying this kind of account to the
Montgomery case produces a rather different picture of what the ‘reasonable person’ limb requires:
RP
L
It is reasonable to inform a patient of risk when there is logical coherence between the patient’s values concerning risk and the patient’s beliefs about the significance of the risk in these circumstances.
Endorsing RPL requires the patient’s values and beliefs that are expressed as part of the therapeutic encounter to be probed for their ‘reasonableness’ prior to the doctor making a decision about what information ought to be disclosed. On this approach, the reasonable person standard would require a more substantive interrogation of the particular patient’s autonomous judgement in the consent process. If this account is correct, then it also looks like the reasonable person limb of the test of materiality is operating to enhance respect for the patient’s autonomy, at least on dominant procedural accounts of the value of personal autonomy.
When applied in practice, there will be examples when a ‘reasonable person’ would accept the coherence of the patient’s values and beliefs. This looks to be the case in Mrs. Montgomery’s own situation. Mrs. Montgomery had expressed a clear concern to her doctor about the anxiety she had about a vaginal delivery. She was worried both about the risks that would present to herself and her baby, given her health condition, and sought to minimise these risks. Her belief that she ought to be told about each and every risk, and to be made aware of an elective Caesarean section, are entirely consistent with the concerns and values that she held. On this interpretation of the ‘reasonable person’ standard, therefore, Mrs. Montgomery ought to be told of the risk of shoulder dystocia because her valuing of risk, and her beliefs about the importance of certain kinds of information about risk, were logically coherent.
In contrast, we can imagine a different situation in which a patient’s beliefs about the need to be told certain information do not track the patient’s value commitments in a rational manner. For example, a patient might express the view that she values a life that involves risk-taking activities, unless the risk presented is to her life. Let’s imagine also that this patient says to the doctor that she doesn’t want to know any risks associated with the necessary treatment, because “that’s not the kind of person that she is”. In a situation like this, it would not be reasonable for a doctor to withhold information about the risk of death associated with an intervention because her beliefs about the significance of risks to be disclosed does not logically cohere with her underlying values about risk.
Is RPL a valid interpretation of the ‘reasonable person’ standard in shaping the law of informed consent? Our concern here is that, if this was the interpretation of the ‘reasonable person’ standard that the judges wished to give content to the materiality test, they would not have drawn upon and presented the two-limbed test in the way that they did. Understood in this way, the ‘reasonable person’ standard would act essentially as a constraint to the exercise of the ‘particular patient’ standard (the second limb of the test). It would begin by considering what the particular patient ought to be told in light of their values, and then would require asking, secondly, whether it is ‘reasonable’ to disclose information on the basis of what the particular patient values and believes, given the logical coherence between these values and beliefs. Given that the justices did not modify the ‘reasonable person’ limb such that it acted as a constraint to the exercise of the ‘particular patient’ limb, this formulation of reasonableness is clearly not what they had in mind. As a separate standard entirely independent from the particular patient’s views on the risks associated with treatment, the ‘reasonable person’ limb can also be recognised as capturing something other than concern about what is owed to the ‘particular patient’ as an autonomous agent.
Interpretation 3: Reasonable as Normatively Justifiable
The final interpretation of the ‘reasonable person’ standard is also one that attends to the import of a normative justificatory standard. However, in contrast to RP
L, which lacked moral content and simply sought to ascertain the rationality and internal coherence of a patient’s values and beliefs, the final interpretation gives ethical substance to what it would be reasonable to require in the specific treatment context. Such an interpretation can be formally presented in this way:
RP
N
It is reasonable to inform a patient of risk that patients ought to be told in these circumstances.
There is some evidence in the Montgomery judgment that RP
N was attended to, particularly in Lady Hale’s minority judgment, which provided that:
[doctors] should [disclose risks] where either the mother or the child is at heightened risk from a vaginal delivery. In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And these include the risks associated with giving birth, as well as any after-effects…
These are risks that any reasonable mother would wish to take into account in deciding whether to opt for a vaginal delivery or a caesarean section ([
32], our emphasis).
This rationale is subtly different from the approach taken by Lords Kerr and Reed. Lady Hale is suggesting that there is information relating to risk, arising in the context of pregnancy and giving birth, that it would be reasonable to take into account in the process of medical decision-making—without reference to the commonly held views that women have about risk in the same circumstances. The ‘reasonable mother’ is not the mother who is reasonable because she considers risk in ways that most women would do so when facing Mrs. Montgomery’s situation. Rather, the ‘reasonable mother’ is the mother who is able to give appropriate moral weight to, and therefore is able to differentiate between, the significance of the risks (and benefits) that arise in the relevant situation. In reverse, it would be unreasonable to exclude from consideration information that, when disclosed, would assist the woman in question to have light shed on those interests that Lady Hale ascribes as being of moral importance for women who are pregnant or going through the process of childbirth—though, of course, the particular pregnant woman herself might not ascribe any relevance to this account of her interests in the birthing process. The distinction between RPM and RPN is subtle and important, but it requires further explication. It is still unclear precisely what extra-legal anchoring work is being done by the reference to ‘reasonableness’ in the judgment.
It is helpful at this point to revisit the High Court of Australia’s judgment in
Rogers v Whitaker. After all, it was in this case that the test of materiality adopted by
Montgomery was first articulated, and in which a woman sought negligence for not being informed about the risk of losing the sight in her left eye. Having been blind in her right eye since childhood, the very low risk of a complication that would have resulted in the loss of sight in both eyes, during an operation on her right eye, was not disclosed to the patient. In their reasoning, the six judges of the High Court of Australia considered whether the ‘reasonable person in the patient’s position’ required the information to be disclosed. They stated:
…it could be argued, within the terms of the relevant principle as we have stated it, that the risk was material, in the sense that a reasonable person in the patient’s position would be likely to attach significance to the risk, and thus required a warning.
It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective ([
37], our emphasis).
The point to emphasise here is that, in the context of the possibility of losing sight in both eyes, the judges recognised that it was reasonable to disclose the risk of damage to Mrs. Whitaker’s normally functioning eye, whilst acknowledging that this risk might not require disclosure if the same risk of sight loss in that eye arose for a patient whose sight was not already impaired. Thus, the significance of full sight loss changes what it is reasonable to disclose, from the standpoint of the patient’s position, even if the strict clinical risk of the complication arising is not itself changed by these circumstances.
Considering
Rogers v Whitaker alongside
Montgomery is also particularly useful because it helps to clarify precisely what normative values the ‘reasonable person’ standard might require giving consideration to in the information disclosure process. The requirement to disclose what is reasonable, understood in this way, looks to attend to a requirement to disclose information that would impact on patients’
well-being, understood in the broadest of terms, and in light of specific and relevant features of the treatment context. Indeed, codified within
Rogers v Whitaker, and first articulated in the South Australian Supreme Court case of
F v R [
9] is the recognition of a number of explicit factors that doctors should consider when determining whether information about risk is material to the treatment decision. These include the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient, and the general surrounding circumstances [
10].
These factors capture the importance of objective, clinically-orientated considerations about patients’ well-being judged to be relevant to determining the materiality of the information to be disclosed. Aside from the point concerning the patient’s desire for information, the other factors all point towards the significance of different ways in which the severity (or not) of the patient’s medical circumstances, and the relationship between these circumstances and negative health outcomes for the patient, are relevant to informing (rather than determining) a judgement about whether certain risks ought to be disclosed. As has been astutely observed, the endorsement of these factors in assessing the materiality of risk in
Rogers v Whitaker raises questions about whether the test of materiality articulated within Australia does in fact depart substantially from the traditional application of the
Bolam standard in England to similar cases pre-
Montgomery, remaining dependent as it is on the application of medical expertise, and skilled professional judgment [
3,
23].
This interpretation of the significance of patients’ well-being captures what is normatively implicit in both the Rogers v Whitaker judgment, and in the Montgomery judgment, as it is expressed by Lady Hale and outlined above. Well-being, as conceptualised in such requirements, is an objective standard, in that it attempts to capture what would it would be good for patients to know, all things considered, but one that requires interpretation from an entirely patient-centred, rather than professional-centred standpoint. This is important because it means that a narrow range of clinical facts about what would be significant to good health outcomes for patients tout court are de-centred in favour of those specific, personal interests that are relevant to the individual patient’s well-being in important, nuanced ways across different treatment encounters.
Importantly, Lady Hale’s judgment in Montgomery also draws attention to the significance of a broader set of subjective considerations concerning patient well-being that have not been well articulated or described previously. Her insistence on considering the experiential dimensions of women’s interests during pregnancy and childbirth capture this contextualised, patient-centric perspective on well-being, tied, as they are, to expectations about the significance of this experience to pregnant women qua pregnant women. In this sense, it would be unreasonable to withhold information from patients that reasonable people would recognise as being relevant to shaping the experiential dimensions of treatment decisions of these kinds—whether this is about the life-changing impact of becoming blind in both eyes (in Rogers v Whitaker), or the inability to weigh up risks that could impact negatively on the significant and personal life events of being pregnant and experiencing giving birth (in Montgomery).
Giving due legal consideration to these subjective, experiential dimensions of well-being will likely lead the new test of materiality to depart more markedly from the application of the previous Bolam standard, and through the incorporation of more objective dimensions of patients’ well-being alone. In making all-things-considered practical judgements about the materiality of risk, the degree of departure from Bolam is likely to depend on the extent to which the treatment setting and specific decision connect with the significance of the patient’s personal, social and cultural interests more broadly. This is essentially an empirical question that qualitative health research could help to clarify.
However, in general terms, whilst one might reasonably think that obstetrics practice, and, for example, psychiatric practice, would be more impacted by how the ‘reasonable person’ limb impacts on how patient well-being ought to be conceptualised differently, one might conclude that in surgical practice, or in other acute medical treatment contexts, patients’ well-being (and, therefore, the requirements of the ‘reasonable person’ limb) ought to be understood in ways that remain closely aligned with a more narrowly clinical interpretation of patients’ well-being interests. After all, it does not seem unreasonable, at least
prima facie, to claim that the reasonable person in the patient’s position would recognise that information about the likelihood and severity of risks of harm arising in a particular procedure are relevant to advancing patients’ well-being in ways that point towards disclosure. Indeed, it is precisely these clinically-orientated and objective well-being considerations that judges have relied upon to inform legal judgements about the materiality of risk, post-
Rogers v Whitaker in Australia (e.g. [
38]), and post-
Montgomery in England (e.g. [
34]).
In summary, then, our argument is that RPN is the accurate interpretation of the ‘reasonable person in the patient position’ limb, and that the account of well-being that gives reasonableness its normative content is one that should be understood (1) from patients’ subjective location within a clinical encounter, (2) as potentially extending beyond clinical factors to include patients’ wider personal, social and cultural interests, and (3) to arise as relevant in unique and subtle ways across different medical specialities and treatment decision-making scenarios. This interpretation does not mean relying on the majority view about what it would be reasonable to be disclosed to a patient, but it does allow for an empirical ‘fleshing out’ of the relevant kinds of information that substantiate patients’ broad well-being interests in different treatment settings, and that ought then to be considered as appropriate to share with patients in those settings. It also follows from this interpretation that the ‘reasonable person’ standard can be articulated in terms that are independent from the values that are actually held by the particular patient (and therefore, in an ethical sense, the requirement to disclose information on the basis of the reasonableness standard is correctly differentiated from a requirement to respect the patient’s autonomy).
Having argued for a particular conceptual interpretation of the ‘reasonable person’ standard that we believe best captures the argument in Montgomery, and its legal heritage, we turn now to the question of whether this normative account is fit for purpose.