On 11 March 2015 the Supreme Court gave its decision in the case of Montgomery -v- Lanarkshire Health Board [2015] UKSC 11. This was a clinical negligence claim that arose from the birth of the Ms Montgomery’s son in 1999. He had been born with severe disabilities, which the claimant alleged were due to negligence on the part of a consultant obstetrician and gynaecologist employed by the defendant health board. Ms Montgomery argued that she ought to have been advised that there was a risk of shoulder dystocia if she were to have a vaginal birth, i.e. a risk that her baby’s shoulders would be unable to pass through her pelvis. This was a known risk where, as here, an expectant mother was suffering from diabetes. 

Ms Montgomery alleged that she should have been advised of this risk during her antenatal care and should have been told of the possibility of choosing to have a caesarean. Ms Montgomery also alleged that when it came to the birth the consultant ought to have then advised her to undergo a caesarean, due to abnormalities in the baby’s heart rate.

Ms Montgomery’s claim was unsuccessful following the initial trial, as the judge concluded that the advice and treatment she received had not been negligent (on the basis that it was supported by a responsible body of medical opinion). The judge also concluded that even if advice about the risk of harm to her baby due to shoulder dystocia had been provided, it was unlikely that the claimant would have chosen to have a caesarean. Ms Montgomery appealed but her first appeal was rejected by the Inner House in Scotland.

Ms Montgomery then appealed to the United Kingdom Supreme Court and the appeal was heard in July 2014. The Supreme Court’s main judgment was provided by Lord Kerr and Lord Reed, with whom all of the other judges in that court agreed, on 11 March 2015. The key points arising from the judgment are that:

  • the law of negligence places a duty on doctors to take reasonable care to ensure that a patient is aware of material risks of injury which are involved in their treatment. The patient is entitled to decide whether or not to take such risks and this will not depend exclusively upon medical considerations. As such, the question of whether a risk of injury or the availability of a form of treatment ought to be discussed with a patient is not purely a matter of medical judgment. 

  • in light of this, a distinction can be drawn between the standard of care owed by doctors when providing advice on the risk of injury and appropriate form of treatment on the one hand, and the standard of care owed in other medical situations (implicitly involving ‘pure’ clinical skill and judgment). In the latter situation, treatment would not be considered to be negligent where there was a body of medical opinion in the same discipline which would support it, provided there was a logical basis for that support. However, in cases concerning the provision of advice on medical treatment an alternative test should be applied, namely whether the doctor has taken reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any alternative treatments. 

  • the court stated that a risk will be ‘material’ if in the circumstances of the particular case a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. 

  • there is, however, an exception to the rule where the doctor considers that the disclosure of the risk would itself be seriously detrimental to the patient’s health. In those circumstances the doctor would be entitled to withhold information concerning that risk, as long as their belief that disclosure would be harmful is reasonable. The doctor would also be able to withhold information where the patient was unable to make a decision, e.g. because they were unconscious or otherwise incapacitated. 

  • the court makes it clear that a patient would also be entitled to inform a doctor that they did not want to receive any information about the risks involved in their proposed treatment and in those circumstances a doctor would not be considered negligent for having failed to provide such information.

Applying this to the circumstances of Ms Montgomery’s case, the Supreme Court decided that the consultant had been negligent in failing to discuss the risk of shoulder dystocia and the possibility of having a caesarean with Ms Montgomery. It is worth noting, however, that the court indicated that Ms Montgomery’s “particular circumstances” required her to be advised of the risk of shoulder dystocia and it will not necessarily be negligent for a doctor to choose not to advise an expectant mother of this risk in other situations.

The Supreme Court also went on to decide that, had Ms Montgomery been appropriately advised of the risk of shoulder dystocia, she would have been unlikely to proceed with a vaginal delivery. It had been accepted by the defendant that had a caesarean been performed it was likely that the baby would have avoided any injury. 

This is a very significant case as Ms Montgomery concerns the duty owed by doctors to their patients when discussing risks and treatment options. It makes clear that it is not an automatic defence to a negligence claim for a doctor to prove that others in their profession would support the advice that they gave.  Even if supported by a body of medical opinion, a doctor could still be considered negligent to have failed to discuss risks with a patient if a reasonable person in the patient’s position would be likely to think the risk was significant. 

The legal focus is therefore now, to a greater extent than before, upon the patient’s perception of which risks should be considered significant, rather than upon the doctor’s.  This reflects the general observations made by Lord Kerr and Lord Reed that, “patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession” and that patients should not be regarded as “uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors”.

Lucy Wilton

Download Supreme Court clarifies doctors’ legal duties when consenting patients for treatment.