On 11 March 2015, the United Kingdom Supreme Court unanimously handed down its landmark decision in Montgomery v Lanarkshire Health Board (Montgomery). The case marks a decisive shift in the law in the United Kingdom on informed decision-making by a patient.
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 23 No 6.
Interestingly, the decision also confirms a judicial movement away from the relationship between doctor and patient being based on medical paternalism, to one where properly informed patients will be held more accountable for the choice that they make regarding medical treatment.
Facts
Nadine Montgomery gave birth to her son Sam Montgomery on 1 October 1999. She was of small stature and suffered from type 1 diabetes. During the delivery, a condition called shoulder dystocia (where the baby’s shoulders are unable to pass through the pelvis) developed. As a result of these complications, the baby was born with severe disabilities.
Mrs Montgomery was identified as a high-risk pregnancy and she was managed throughout her pregnancy under the care of Dr Dina McLellan, a consultant obstetrician. Relevantly, Mrs Montgomery was a molecular biologist and described as a highly intelligent person.2
It was accepted that shoulder dystocia occurs in 9% to 10% of all diabetic mothers. Dr McLellan failed to advise Mrs Montgomery of the risk of shoulder dystocia for diabetic mothers, nor give her the option of having a caesarean section to avoid the risk. Dr McLellan acknowledged that the risk of shoulder dystocia occurring was a relatively high risk but, in her estimate, the likelihood of a grave problem arising from shoulder dystocia was small.
She said that it was not her practice to spend time discussing the potential risks of shoulder dystocia, and it was not in the 'maternal interests' of women to have a caesarean section birth.3 It was not disputed that if Mrs Montgomery had undergone a caesarean section, the injuries to her baby would have been avoided.4
Mrs Montgomery brought proceedings on behalf of her son against the Lanarkshire Health Board, which employed Dr McLellan. The trial took place before the Outer House of the Court of Session (the Lord Ordinary),5 with subsequent appeals made to the Inner House of the Court of Session6 and the United Kingdom Supreme Court. In both the trial and the initial appeal, the courts held that Dr McLellan was not negligent for failing to fully discuss with Mrs Montgomery the risks involved with her pregnancy and birth of her child.
Trial and first appeal
At first instance, the Lord Ordinary largely adopted the approach taken by the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (Sidaway).7 In Sidaway, a failure to advise of certain risks did not amount to negligence where the conduct of the doctor was accepted as proper by a responsible body of medical opinion (adopting the earlier approaches in Hunter v Hanley8 and Bolam v Friern Hospital Management Committee,9 known as the 'Bolam test').10
In Montgomery, the Lord Ordinary held that the Bolam test should apply to cases involving medical advice (and warnings) as well as cases involving diagnosis and treatment. His Honour acknowledged that in circumstances where a proposed treatment involved a 'substantial risk of grave adverse consequences' a doctor might be obliged to warn of the risk.11 He found this was not a case where the risk of grave consequences was so substantial that no practitioner could reasonably have omitted to warn the patient of that risk.12
This was consistent with and largely based on evidence before the Lord Ordinary that the medical profession did not generally disclose the risk of shoulder dystocia to mothers.13
Although it was unnecessary, as breach was not established, his Honour proceeded to look at the issue of causation. He thought that the relevant question was whether Mrs Montgomery, after being advised of the 'small' risk of grave consequences arising from shoulder dystocia, would have chosen to proceed with a caesarean section. Dr McLellan’s evidence was that if she had identified the risks arising from shoulder dystocia, she thought that Mrs Montgomery would have requested a caesarean section.
Mrs Montgomery’s own evidence was that if she had been told of the risk of shoulder dystocia, and learned that there was a significant risk to her, she would have requested a caesarean section. The Lord Ordinary however decided that even with the relevant warning, Mrs Montgomery would still have elected a vaginal delivery.14
Mrs Montgomery failed in her appeal and the Lord Ordinary’s decision was upheld by the Inner House on the same basis.
Appeal before the United Kingdom Supreme Court
The United Kingdom Supreme Court (the Court) overruled the previous decisions of the lower courts and found in favour of Mrs Montgomery.
A comparative analysis
The Court approved of the principles found in the leading Australian High Court case of Rogers v Whitaker (Rogers),15 as well as approaches taken in Canada,16 and recent cases before the courts in England and Wales.17 In Rogers, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ explained that the question when advising a patient of treatment options was 'generally speaking… not a question the answer to which depends upon medical standards or practices'.18
The Court specifically approved the test in Rogers, which provides that a doctor owes a duty to explain to a patient 'material risks' prior to the patient consenting to medical treatment. The Court found that the approach taken by the Australian High Court was 'undoubtedly right',19 and cited the facts in Rogers as being illustrative of this point namely, that a patient who was blind in one eye would attach a greater significance to the risk of going blind in his other eye as a result of an operation than would a person with sight in both eyes.
The Court conceded that a doctor would need to make a judgment as to how best to explain risks to a patient (and this may require some degree of skill). However, by following the logic applied in Rogers, the Court found that the skill and judgment required to advise of risks associated with a medical procedure does not generally entail any medical judgment to which the Bolam test should apply.
Social, medical and legal developments
Before setting out its reformulated legal test, the Court undertook an analysis of how the social, medical and legal changes over time have pointed towards a move away from the relationship between a doctor and a patient being based upon medical paternalism. In tracking through these changes, the Court concluded that the current position on informed consent has now been altered in three significant ways:
- First, the Court examined how patients are now regarded as persons holding rights as opposed to passive recipients of medical care. In addition, patients are consumers who have a range of options available to them when seeking treatment. Due partly to developments in technology, patients can easily gain access to information about medical treatment. The law should no longer assume patients are medically uninformed and incapable of understanding medical matters.20
- Second, the Court examined how professional practice in the United Kingdom recognised the importance of the informed involvement of patients in treatment. Guidelines issued to doctors generally emphasise the importance of considering a patient’s concerns and preferences and giving them the information that they want and need in a way they can understand.21
- Third, the Court discussed how human rights protections enshrined in the Human Rights Act 1998 (UK) and the European Convention on Human Rights have come into focus to recognise the value of self-determination, and the right to respect for private life.22
The Court concluded that the combined effort of these developments is to treat patients as adults who are capable of understanding that medical treatment is uncertain of success and may involve risk.23
The new test of materiality
The Court set out the test for determining whether a doctor has adequately informed a patient of all relevant risks involved with a procedure:24
This test was subject to two provisos:25
The Court warned that the assessment of whether a risk is material should not be reduced to a percentage. The significance of a given risk is fact sensitive. The nature of the risk, the effect on the life of the patient, the importance to the patient of the benefits sought by the treatment and the alternatives available, are all factors to consider.26
Findings against the medical practitioner
After finding that a doctor’s duty is to take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment (including reasonable alternatives), the Court concluded that Dr McLellan ought to have advised Mrs Montgomery of the risk of shoulder dystocia, and discussed with her the option of delivering her baby by caesarean section.27 The Court criticised the lower courts for focusing narrowly on the grave risk of injury arising from shoulder dystocia (a risk which was relatively small). It was found that the focus should have been on the risk of shoulder dystocia itself (a risk which was substantial).28
The Court observed that shoulder dystocia could give rise to a major obstetric emergency with risks also arising to the mother. The Court felt that for too long the focus had been on the risks to the baby, without proper account being given to the risks to the mother when giving birth.29 It was found that any reasonable mother would also wish to take into account these known risks in deciding whether to opt for a vaginal delivery or a caesarean section.30
The Court also explained that it was important that the 'therapeutic exception' that may arise where a doctor withholds disclosure where it would be seriously detrimental to a patient’s health, ought not be abused.31 Dr McLellan’s 'policy' was to withhold information about the risk of shoulder dystocia because otherwise patients would request caesarean sections. The Court explained earlier in its judgment that the exception should apply in limited circumstances.32 The doctor is required to explain the available treatment options and which option is medically preferable, but leave it up to the patient to decide upon treatment. It was not appropriate in this case for Dr McLellan to rely on the 'therapeutic exception'.33
In relation to causation, the Court concluded that the failure of the lower courts to consider the relevant evidence of Mrs Montgomery and Dr McLellan was a compelling reason to reject their findings of fact.34 The Court found that Mrs Montgomery would have elected a caesarean section had she been given this option on an informed basis.
Comments
This decision brings the law in the United Kingdom on informed decision-making into line with the approaches in Australia and other common law jurisdictions. The Court acknowledged that some healthcare providers may not welcome the legal shift and could raise a 'floodgates' style of argument. The Court rejected the notion that the test of materiality could increase or encourage litigation and thought that patients who take greater responsibility for making their own decisions may be less likely to blame another party.
On balance, the Court felt that an approach that respected the dignity of patients meant that a degree of future uncertainty in applying these new legal obligations should be tolerated.35
1 Montgomery v Lanarkshire Health Board [2015] All ER (D) 113 (Mar); [2015] UKSC 11; [2015] 2 All ER 1031; [2015] 2 WLR 768.
2 Above, n 1, at [6].
3 Above, n 1, at [13].
4 Above, n 1, at [22].
5 Montgomery v Lanarkshire Health Board [2010] CSOH 104; 2010 WL 3073077.
6 Montgomery v Lanarkshire Health Board [2013] CSIH 3; 2013 SC 245.
7 Sidaway v Board of Governors of the Bethlem Royal Hospital & Maudsley Hospital Board [1985] AC 871; [1985] 1 All ER 643; [1985] 2 WLR 480.
8 Hunter v Hanley [1955] SC 200; [1955] SLT 213.
9 Bolam v Friern Barnet Hospital Management Committee (1957) 1 BMLR 1; [1957] 2 All ER 118; [1957] 1 WLR 582.
10 The Bolam test was concerned with the diagnosis, treatment and advice on the risks of electro-convulsive therapy. The test formulated by McNair J was that, 'a doctor was not guilty of negligence if she had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that art'.
11 Above, n 5, at [233].
12 Above, n 5, at [234].
13 Above, n 5, at [95].
14 Above, n 5, at [267].
15 Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; 67 ALJR 47; BC9202689.
16 Above, n 1, at [70].
17 Above, n 1, at [63].
18 Above, n 15, at 489–90.
19 Above, n 1, at [73].
20 Above, n 1 at [76].
21 Above, n 1 at [77]–[79].
22 Above, n 1 at [80].
23 Above, n 1, at [81].
24 Above, n 1 at [87]
25 Above, n 1, at [88].
26 Above n 1, at [89].
27 Above, n 1, at [94].
28 Above, n 1, at [103].
29 Above, n 1 at [112], the Court cited the increased risks of maternal morbidity where shoulder dystocia occurred.
30 Above, n 1, at [113].
31 Above n 1, at [91].
32 Above, n 1, at [88].
33 Above, n 1, at [95].
34 Above, n 1, at [102].
35 Above, n 1, at [93].
