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Menopause, Montgomery and informed consent

Health lawyer Suzanne White welcomes the fact that women are starting to talk about the menopause after years of silence on the subject.

Two women at desk
Suzanne White is head of the clinical negligence team at Leigh Day.  She is an experienced clinical negligence solicitor who has specialised in this area since qualifying in 1999 after training with the firm.
Menopause has been a taboo subject for many years, embarrassing to talk about, and something that women should put up with as part of the course of getting older. But finally, women are coming out to talk openly about the impact of menopause on their lives, their family and their work. 
 
The statistics vary of course but there is an estimated 13 million women currently peri-menopausal or post-menopausal in the UK according to the Wellbeing of Women charity. A quarter of them are really struggling with symptoms that can last up to 15 years. In fact, a quarter of women have considered leaving their job during the menopause because of severe symptoms. Additionally, 1 in 100 women have early menopause, but, according to menopause experts these women are not being appropriately diagnosed or in fact in some cases, not even being diagnosed at all. 
 
This is truly astonishing given that these women will have a huge amount of experience and likely to be senior in their career. This a health issue but this also impacts on the economy of the country.
 
So why are menopausal women left unsupported and why is menopause a topic that is swept under the carpet? 

Awareness of menopause

Until recently menopause and its potential impact on women’s lives has not been a topic for discussion. Many women are not aware of the symptoms that are caused by the menopause; the need for more awareness is key so that women can ask for the help they need to manage and improve symptoms, but also be aware of the potential benefits of treatment such as HRT which reduces osteoporosis and diabetes. 

Breast cancer and HRT 

HRT and the link with breast cancer has previously been highlighted and this has left its impression over the years. The increased risk has had an impact on women asking about whether HRT should be the answer to help manage the menopause, and also for GPs offering HRT as a treatment option.
 
Very recently there has been a further report in the Lancet regarding HRT and the risks of breast cancer and the MHRA has released a recent warning about the increased risk of breast cancer and HRT.

Medical experts in the field of menopause such as Dr Louise Newson, who is a GP and menopause specialist, have commented on the recent Lancet study and have said that it did not reveal anything that was not already known. Dr Newson said that  “GPs are really scared of HRT and I worry this will be another nail in the coffin which is wrong because women’s health is suffering”.

Menopause experts despair of the approach taken by some doctors and GPs to the menopause and prescribing HRT as an option. I am told by the experts that GPs are reluctant to prescribe HRT in some instances, often diagnosing menopausal symptoms as depression and prescribing anti-depressants.

How can we improve the care and treatment options and choice for menopausal women? 

It may seem that the answer would be to educate the medical profession with the clear guidelines on HRT but in fact the NICE guidelines do offer a pretty comprehensive guidance to doctors.
 
NICE Guidelines on diagnosis and management state:
 
1.3.1. Give information on menopause in different ways to help encourage women to discuss their symptoms.
 
1.3.3 Give information to menopausal women and their family members or carers (as appropriate) about the following types of treatment for menopausal symptoms:
 
  • Hormonal, for example hormone replacement therapy (HRT)
  • Non-hormonal, for example clonidine
  • Non-pharmaceutical, for example cognitive behavioural therapy (CBT).
 
Given the NICE guidelines are clear on this issue doctors should be offering all treatment options available to women and that includes HRT if appropriate. In addition, the General Medical Council’s guidelines state that patients should have informed consent about the treatment options and the care they receive.
 
However, despite GMC and NICE guidelines, according to menopause experts the message about HRT as an option for menopausal women is still not getting through to GPs. So can the law have an impact on the options, and choices offered to these women, so that they have informed consent about their treatment options?  I think it can. 

What does the law say about informed consent?

Since the landmark case of Montgomery v Lanarkshire Health Board 2015, brought by a young mother Nadine Montgomery, the law on consent in medical care has been revolutionised. Nadine Montgomery, a young woman with diabetes and of small stature, gave birth to a large baby that suffered a brachial plexus injury and hypoxic ischaemia as a result of shoulder dystocia. Her obstetrician had not told her about the risk of shoulder dystocia, and Nadine Montgomery sued the Trust on the basis that she should have been informed of the risk and that she should have had the option to have a caesarean which she would have taken if offered to her. Nadine Montgomery won her case in the Supreme Court revolutionising the law on consent for patients.
 
The Supreme Court judgment stated that:
 
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty 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 treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
 
The case is about patient choice, informed consent, and options. In order for patients to make a choice about the care or treatment they receive they need to be able to be advised of the risks and benefits of each option.  The Montgomery decision is having an impact on the consent process for patients, not just in an obstetric setting but in all areas of medical care. It also re-established what was said in the GMC Guidelines about the consent procedure offered to patients.  

Can litigation help?

Could there be claims for the failure to firstly appropriately diagnose menopause but also offer all reasonable options to women to treat their menopause symptoms?  I think that GPs could increasingly find themselves facing potential litigation if they are not offering appropriate treatment as set out in the NICE Guidelines, and also providing their patient with informed consent as set out in Montgomery.

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