MONTGOMERY (Appellant) v LANARKSHIRE HEALTH BOARD (Respondent) & GENERAL MEDICAL COUNCIL (Intervener) [2015] UKSC 11

The Appellant was a woman who sustained injuries whilst giving birth to her child. 

Facts

The Appellant was a woman who sustained injuries whilst giving birth to her child.

The Appellant had been treated by a consultant obstetrician during her pregnancy because she was diabetic, and was therefore likely to have a large baby. She had been told that she was having a larger than usual baby, but she was not told about the risks of her experiencing mechanical problems during labour. In particular she was not told about the risk of shoulder dystocia, that risk being 9-10% in the case of diabetic mothers. The consultant did not warn the Appellant because, in her estimation, the risk of a grave problem was very small.

During the delivery, shoulder dystocia occurred and the baby was deprived of oxygen due to occlusion of the umbilical cord. He was born with severe disabilities.

Issue

It was the Appellant’s case that she should have been advised about the risk of shoulder dystocia, and of the alternative possibility of delivery by caesarean section.

The Lord Ordinary held that following Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871, the question of whether a doctor’s omission to warn a patient of inherent risks in a proposed treatment constituted a breach of the duty of care was normally to be determined by the application of the Bolam test. It therefore depended on whether the omission was accepted as proper by a responsible body of medical opinion. In light of the expert evidence given on behalf of the Respondent, that test was not met. It also concluded that, even if the Appellant had been advised about the risk of harm she would not have opted for a caesarean.

Judgment

The Supreme Court unanimously allowed the Appellant’s appeal. The lead judgment was given by Lord Kerr and Lord Reed.

It was held that the analysis of the majority in Sidaway was unsatisfactory. Lord Scarman’s dissenting judgment, which took as its starting point a patient’s basic human right to make his own decision, was to be preferred.

Lord Scarman’s had stated that if (1) the patient suffers damage, (2) as a result of an undisclosed risk, (3) which would have been disclosed by a doctor exercising reasonable care to respect her patient’s right to decide whether to incur the risk, and (4) the patient would have avoided the injury if the risk had been disclosed, then the patient will in principle have a cause of action based on negligence.

The Court observed that in Chester v Afshar [2004] UKHL 41, Lord Walker had stated that since Sidaway, the importance of personal autonomy had been more widely recognised. In making a decision which might have a profound effect on health and wellbeing, a patient was entitled to information and advice about possible alternative or variant treatments.
The impact of the Human Rights Act 1998 on the extent to which courts were increasingly conscious of the value of self-determination was also considered.

As such, it was held that the analysis of the law by the majority in Sidaway was unsatisfactory in so far as it treated the doctor’s duty to advise the patient of the risks of proposed treatment as falling within the scope of the Bolam test. There was no reason to perpetuate the application of the Bolam test in that context any longer.

The correct position was:

‘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.’

On the facts it was held that there was no doubt that it was incumbent on the consultant to advise the Appellant of the substantial risk of shoulder dystocia if a vaginal delivery were attempted, and to discuss with her the alternative of a caesarean section.

Analysis

The judgment of Lord Kerr and Lord Reed might be seen as an attempt to bring the law on informed consent in line with the changing nature of doctor/patient relationships. The judgment acknowledges that since Sidaway was decided this relationship has become less paternalistic: patients are now treated as being capable of understanding that medical treatment involve risks. Many will welcome this update in the law to reflect this changing relationship.

However, clearly, the duty incumbent on doctors has become more burdensome. It might be argued that there is simply not time in the modern healthcare environment to provide information on all the risks that might manifest themselves in a given treatment. Their Lordships addressed this point, holding that ‘even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires.’ The Court was therefore somewhat unsympathetic to these complaints. Indeed, their Lordships anticipated criticism, stating : ‘This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562 was no doubt received in a similar way by the manufacturers of bottled drinks.’