Montgomery Law

Implications of the Supreme Court’s decision in Montgomery v Lanarkshire Health Board

Executive summary

The Supreme Court, in Montgomery v Lanarkshire Health Board [2015] UKSC 11, recently overturned the decisions of both Houses of the Scottish Court of Session and awarded damages to a claimant on the basis that she was not given the appropriate medical advice, resulting in her son suffering brain damage during his birth in 1999. The decision, handed down on 11 March, changes the law on informed consent such that doctors must now make patients aware of risks that a reasonable patient would think were material. In this update, we look at some of the key implications for medical professionals.

Background

The claimant/appellant, Nadine Montgomery (‘M’) gave birth to her son, Sam, on 1 October 1999. The basis of her argument was that she had not been made fully aware of the specific risks of being type 1 diabetic and physically small. During the birth, Sam suffered oxygen deprivation for 12 minutes when his shoulders got stuck (shoulder dystocia) after delivery of his head. His need for resuscitation resulted in brain damage leading to cerebral palsy and nerve damage.

Diabetic women are known to be more likely to have bigger than normal babies and M argued that she should have been advised of the attendant 9-10% risk of shoulder dystocia. M had expressed concerns during the pregnancy about her ability to deliver the baby safely and whilst her obstetrician had been aware of the risks of shoulder dystocia, she had decided not to discuss it with M, or the option of a Caesarean section as an alternative. M had indicated that, had she been advised of the risks, she would have opted for a Caesarean section. It was not disputed that, had this happened, Sam would have been born unharmed.

The law

The case law on risks and patient consent has always had to try to strike a balance between the interests of patient and medical professionals but medical practice has of course evolved and continues to do so. The so-called Bolam test (from Bolam v Friern Hospital Management Committee [1057] WLR 582) is well-established as the test for negligence – the claimant must show that the practitioner did not act in accordance with a practice accepted as proper by a responsible body of medical professionals, skilled in that particular area.

In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871, the House of Lords (as our supreme court then was) held that the same test applied when considering whether a doctor should warn of the risks inherent in a proposed course of treatment: negligence would only be established if no prudent medical practitioner would have failed to warn. It was this test that was applied and upheld by the Scottish courts against M. It is worth noting of course that the law on the issue of risk moved significantly with the House of Lords’ decision in Chester v Afshar [2004] UKHL 41, when it was held that a doctor's failure to fully inform a patient of all surgery risks vitiated the need to show that harm would have been caused by the failure to inform.

The Supreme Court’s decision

The court unanimously allowed M’s appeal, with Lord Reed stating that the position in Sidaway on informed consent was unsustainable given that the approach on which that decision had been based was not representative of the modern relationship between patients and doctors. The solicitors who acted for M noted that the court had essentially modernised the law on consent, making the test patient-focussed rather than doctor-focussed, and reflected the Guidance of the General Medical Council on the requirement to consent patients which had been in force both when Sam was born and today. The GMC’s chief executive was quoted as describing the judgment as “very helpful” and stated that the court had endorsed the approach on consent that was advocated by their guidance.

Conclusion and implications

The thinking behind the Supreme Court’s decision is clear: patients are to be treated as adults who are perfectly capable of understanding the risks of treatment and accepting responsibility for the consequences of their own decisions based on the information that they are given. Practitioners must now take reasonable care to ensure that patients are aware of any material risks in a proposed course of treatment as well as any reasonable alternatives. A risk is material if a reasonable person in the patient’s position would be likely to attach significance to it, or if the practitioner is or should reasonably be aware that the patient would be likely to attach significance to it.

The Court also emphasised that the doctor’s obligation will only be discharged if the information is imparted in a way that the patient can understand. ‘The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form‘ (paragraph 90). This is significant in that hospitals will be unable to rely merely on a completed consent form as evidence that a clinician has fully appraised a patient of the risks of a procedure.

In this case, the Supreme Court justices said that shoulder dystocia was a major obstetric emergency and the contrast with the tiny risks to the baby and mother from an elective caesarean was “stark.” If it were left to doctors to decide what information to give to patients, the justices said, that would sanction differences in practice attributable not to different schools of medical thought but to “divergent attitudes among doctors as to the degree of respect owed to their patients.” Lady Hale stated (paragraph 111) that doctors should volunteer the pros and cons of vaginal birth and elective C-section ‘in any case where either the mother or the child is at heightened risk from a vaginal delivery.’ Following these comments, it seems that we now need to work on the basis that failure to offer an elective C-section where there are heightened risks to vaginal delivery may lead to liability for negligence.

In practical terms, the legal duty incumbent on medical professionals has now become heavier and the harsh reality is that time pressures in the modern environment do not allow for the provision of information on all the ‘material’ risks. Their Lordships, however, addressed this point specifically, 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.’ (Paragraph 93). Pressure of time or lack of resource will not be a valid reason for failing to engage in the type of discussion that the judgment envisages.

On an objective assessment - and whilst this decision amounts to the law essentially catching up with modern practice - the importance of this judgment must not be underestimated. The crucial question of whether a medical professional is negligent for failing to advise on the risks of treatment will now be based on an objective assessment of what risks a reasonable patient would have regarded as material, as opposed to prevailing medical practice. In terms of the future of claims, it is to be hoped that Montgomery-compliant disclosure of risks will help to protect medical staff - its intention is to enable patients to bear responsibility for their own (fully-informed) decisions.