Montgomery v. Lanarkshire Health Board  UKSC 11, 11 March 2015 – read judgments here
James Badenoch QC of 1COR was for the mother in this case. He played no part in the writing of this post.
An important new decision from a 7-Justice Supreme Court on informed consent in medical cases.
In the mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence (which all lawyers will know as the Bolam principle) was extended to the quality of information to be provided to a patient about a given treatment.
The Supreme Court, reversing the judgments at first instance and on appeal, has now unequivocally said that Sidaway should not be followed.
In 1999, Mrs Montgomery gave birth to a baby boy. Unfortunately, he was starved of oxygen during the delivery and sustained severe brain damage. The principal claim was against her obstetrician for failing to give proper warnings. This was because the mother was small and diabetic, and diabetes tends to lead to larger babies. In the event, the shoulders of the baby got stuck during delivery (known as shoulder dystocia) and there was a 12 minute delay in freeing the shoulders during which her son sustained the brain injury. He also sustained paralysis of an arm caused by the force used in pulling him out.
The mother said she should have been warned of the risks of shoulder dystocia, and her evidence was that, had she been so warned, she should have been offered and would have asked for a caesarean section.
The Sidaway point
The obstetrician said she did not warn about shoulder dystocia because the risks of a serious problem ensuing from it were very small, and in this she was supported by some of the experts who gave evidence at trial.
But was this the right approach, namely for the decision about the information to be provided was to be left ultimately to the doctor’s clinical judgment?
The majority decision in Sidaway supported this, though, as the current Supreme Court explained, the reasoning of the House of Lords was rather more nuanced than has been often stated.
The Scottish courts decided that Sidaway was determinative of the question.
The Supreme Court, after an exhaustive review of the post-Sidaway cases, disagreed. In particular, the Court noted that the English courts (in cases such as Pearce and Chester v. Afshar) had eroded the supposed certainties of Sidaway and have tacitly ceased to follow Sidaway‘s adoption of the Bolam test in this context. Australian and Canadian courts had taken the same view.
The justification for this change of approach will be obvious. A patient has her own right to make her own decision based upon sufficient information. A doctor must respect that right if there were material risks which a reasonably prudent patient would think were significant. Medical evidence would of course be relevant to that decision, but the decision was ultimately legal rather than one for the doctors. As the main judgment puts it at 
….patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession.
Times have moved on from the “doctor knows best” approach of Sidaway. There are so many other sources of information available to patients (the internet, patient support groups, drug labelling etc) and hence
It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation….. To make it the default assumption on which the law is to be based is now manifestly untenable.
This default assumption does not accord with GMC guidance to doctors, nor indeed with other developments in the law:
80. Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values. As Lord Scarman pointed out in Sidaway’s case, these include the value of self-determination….. As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by article 8 of the European Convention on Human Rights.
The Court noted that the resulting duty to involve a patient in treatment decisions has been recognised in Strasbourg cases such as Glass v United Kingdom (2004) 39 EHRR 15 and Tysiac v Poland(2007) 45 EHRR 42, as well as in a number of decisions of UK courts.
So the move is away from a model of medical paternalism. Social and legal developments point towards an approach to the law
which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.
This rule comes with an important caveat, known as the therapeutic exception. A doctor is entitled to withhold from the patient information as to a risk if she reasonably considers that its disclosure would be seriously detrimental to the patient’s health. But the Court stressed the limited nature of this exception. It should not be use to subvert the principle in circumstances where the doctor thinks that the patient is liable to make a choice which the doctor believes in contrary to her best interests.
The Court went on to decide that the obstetrician should have warned the mother about the risks of shoulder dystocia and discussed the alternative of an elective caesarean section.
Causation on the facts
A claimant still has to show that she would have made a different decision, had she been properly informed. Here, the first instance judge had concluded that, with full advice about shoulder dystocia, the mother would not have opted for an elective caesarean.
It is usually extremely difficult for an appellate court to reverse that sort of decision on the facts. However, the judge’s conclusions contained two errors, according to the Supreme Court. It focussed on the very small risk of grave consequences from shoulder dystocia, rather than the considerably greater risks of shoulder dystocia itself (9% to 10%). It also omitted one important bit of evidence from the obstetrician herself, who, when explaining why she did not warn about shoulder dystocia, said that most women would actually say, ‘I’d rather have a caesarean section'”.
The obstetrician added
if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections.
So the obstetrician herself accepted that mothers would generally opt for a caesarean if so warned; that was a reason for not warning.
The Supreme Court noted that the judge had concluded that the obstetrician was an impressive witness. To find that she was wrong in her evidence on this point does strike one as a little inconsistent.
Hence, taking the mother’s evidence with the obstetrician’s evidence, the Court concluded that it is probable that the mother would have chosen caesarean section had it been offered to her with a proper explanation of the risks of shoulder dystocia.
Lady Hale, in her concurring judgment, pointed out that the obstetrician’s view did not appear to be a purely medical judgment.
It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter. Giving birth vaginally is indeed a unique and wonderful experience, but it has not been suggested that it inevitably leads to a closer and better relationship between mother and child than does a caesarean section.
The first is indeed a telling point. As for the second, the only HRB editor with direct experience of childbirth would herself not go quite as far as describing vaginal delivery as a “unique and wonderful experience.”
The Supreme Court has now cleared up the inevitable arguments which occurred from time to time in UK courts as to how Sidaway could be reconciled with the later cases, and has brought Scots law into harmony with the recent English cases. The present judgments show a rather more modern and enlightened approach to the doctor-patient relationship than that adopted 30 years ago in the House of Lords.
And so for the two people shown in my pic above, a successful claim in damages.
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