New Judgment: Montgomery v Lanarkshire Health Board (Scotland)  UKSC 11
11 Wednesday Mar 2015
On appeal from:  CSIH 3;  CSIH 104.
The issue before the Supreme Court was whether a consultant obstetrician and gynaecologist was negligent in her management of the appellant’s pregnancy and labour and, if so, whether this was causative of the child’s brain injury. The Lord Ordinary accepted that where treatment involved a “substantial risk of grave adverse consequences”, a judge could in some cases conclude that a patient’s right to decide whether to consent to that treatment was so obvious that no prudent doctor could fail to warn of the risk.
Held: allowing the appeal; it would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on information from doctors. This is reflected in the GMC’s guidance. Courts were also increasingly conscious of fundamental values such as self-determination. Lords Kerr and Reed reason that an adult of sound mind was entitled to decide which of the available treatments to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor was under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives. A risk was “material” if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor was or should reasonably be aware that their patient would be likely to attach significance to it. Three further points emerged: first, assessing the significance of a risk was fact-sensitive and cannot be reduced to percentages. Second, in order to advise, the doctor must engage in dialogue with her patient. Third, the therapeutic exception is limited, and should not be abused.