Case Comment: Montgomery v Lanarkshire Health Board  UKSC 11
27 Friday Mar 2015
The appellant, Nadine Montgomery, gave birth on 1 October 1999 and, as a result of complications during delivery, her son was born with cerebral palsy. Montgomery sought damages against Dr McLellan who was responsible for her care during pregnancy and labour. A summary of the facts and the judgments of the Outer and Inner Houses of Session can be found in this blog’s Case Preview here. The judgment can be found here.
The appeal to the Supreme Court focused on McLellan’s failure to disclose the risks and obtain informed consent from Montgomery (“the Informed Consent Argument”). The court was invited to depart from the decision in Sidaway and to reconsider the duty of a doctor towards a patient in relation to advice about treatment.
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital
The Supreme Court considered there to be two distinct views within the Sidaway judgment. At one end of the spectrum, Lord Diplock’s view was that (1) any alleged breach of a doctor’s duty of care, whether in relation to diagnosis, treatment or advice, should be determined by the Bolam test; and (2) there is no obligation to provide patients with unsolicited information about risks. By contrast Lord Scarman’s view, as summarised by the Supreme Court, was 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 Supreme Court also considered Lord Scarman’s point that the decision to consent to a particular treatment “did not depend solely on medical considerations”  but also on the importance attached by patients to quality of life and appearance or body integrity; neither of which may have been revealed to the doctor and both of which will vary across patients. Based on Lord Scarman’s view, “the doctor [is] under a duty to inform the patient of the material risks inherent in the treatment. A risk [is] material, for these purposes, if a reasonably prudent patient in the situation of the patient would think it significant” .
The Supreme Court concluded that “it would therefore be wrong to regard Sidaway as an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment” . The Court also noted how “unreal”  it was to place the responsibility on patients to ask about potential risks. This leads to the “the drawing of excessively fine distinctions between questioning, on the one hand, and expressions of concern falling short of questioning, on the other hand” , the disregard of “the social and psychological realities of the relationship between a patient and her doctor” and the odd finding that “the ignorance which such patients seek to have dispelled disqualifies them from obtaining the information they desire” . Such conclusions were noted to be “a reversal of logic.”  The Court also noted that the English courts (in subsequent cases such as Pearce v United Bristol Healthcare NHS Trust and Chester v Afshar) had quietly ceased to follow Sidaway‘s adoption of the Bolam test.
The Duty of Disclosure
The Justices commented that patients are now widely regarded as holding rights and exercising choices. The Court noted that “the “informed choice” qualification rests on a fundamentally different premise: it is predicated on the view that the patient is entitled to be told of risks where that is necessary for her to make an informed decision whether to incur them” . As a result, an adult of sound mind is entitled to decide which treatment, if any, to undergo and her consent must be obtained beforehand. The Supreme Court found that:
“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” .
It was emphasised that whether a risk is material cannot be reduced to percentages, and instead is based on a variety of factors such as: (1) nature of the risk; (2) effect on the life of the patient; (3) the importance to the patient of the benefits of the treatment; (4) any possible alternatives; and (5) the risk of those alternatives. Doctors will also need to ensure that any information provided is comprehensible, such that the patient understands the seriousness of her condition, the benefits and risks and any alternatives so that she is able to make an informed decision.
An exception to the duty is if the doctor reasonably considers that the disclosure of the risk would “be seriously detrimental to the patient’s health” , or in circumstances of necessity. However, the Court made it clear that this exception should not be abused.
Application to the Current Case
The Supreme Court found that McLellan was under a duty to disclose the risk of shoulder dystocia to Montgomery, given that shoulder dystocia is a major obstetric emergency which involves significant risks to the mother’s health. McLellan would have been entitled to withhold information about the risk if it would have been harmful to Montgomery’s health, however the exception is not intended to enable doctors to prevent their patients from taking informed decisions. Instead McLellan should have explained to Montgomery why she believed that a vaginal delivery was medically preferable to a caesarean, having taken care to ensure that Montgomery understood the considerations for and against each option. The Court also noted that the issue of causation should not be judged against Montgomery’s reaction to the risk of cerebral palsy, but instead to the risk of shoulder dystocia. The Court found that had McLellan warned Montgomery of the risk of shoulder dystocia and discussed the potential consequences and the elective caesarean as an alternative treatment, Montgomery would probably have chosen to have her baby delivered by caesarean.
This case has provided the Supreme Court with the opportunity to firmly state that the need for “informed consent” is now part of English law. This landmark ruling clearly illustrates the Court’s growing appreciation of patients’ self-determination and ability to understand the consequences and risks of a particular treatment. Doctors, and other healthcare professionals, are now under a clear duty to take reasonable care to ensure that patients are aware of all material risks. This judgment aligns the law with the guidance on consent set out by the General Medical Council.
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