The case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 remains this year’s most important clinical negligence case. It provides that the Bolam test is not applicable to issues of consent to medical treatment.
Mrs Montgomery suffered from insulin dependent diabetes mellitus which made her more likely to have a larger baby. She was also of small stature. She fell pregnant with her first child in 1999, at which time it was known that Mrs Montgomery was at a heightened risk of experiencing shoulder dystocia as a consequence of those risk factors.
Mrs Montgomery’s was considered to be a high risk pregnancy requiring intensive monitoring, however, she was not warned of the heightened risk of shoulder dystocia, described by the defendant’s own expert witness as “a major obstetric emergency……..” Clinical negligence practitioners will be well aware that shoulder dystocia can lead to the child sustaining severe brachial plexus injuries, as well as oxygen deprivation that can cause profound brain injuries.
The evidence in the case was that the risk of shoulder dystocia occurring in cases involving diabetic mothers was 9-10%. However, the risk that a child born to a diabetic mother would suffer a brachial plexus injury was 0.2% (1 in 500). The risk of a brain injury or death from hypoxia was 0.1% (1 in 1000). The obstetrician declined to inform Mrs Montgomery of the risk of shoulder dystocia because she considered the risk of consequential injury to be very slight.
Mrs Montgomery expressed concerns about the size of her baby during pregnancy, but had not asked her obstetrician “specifically about exact risks”. Her evidence was that had she been informed of the risk of shoulder dystocia she would have asked for more information. Upon receipt of further information she would have requested a caesarean section. The obstetrician also considered that most diabetic patients would elect to undergo a caesarean section if they were in receipt of full facts, and she felt that Mrs Montgomery in particular would have elected to undergo a caesarean section.
Mrs Montgomery experienced a difficult labour. Shoulder dystocia was encountered and her child was deprived of oxygen. The child suffered both cerebral palsy and a brachial plexus injury, which would likely have been avoided had he been born by caesarean section.
There was competing expert evidence. Some experts considered it reasonable not to have discussed shoulder dystocia, others felt it was unreasonable to have failed to discuss the risk as Mrs Montgomery expressed concerns over the size of her baby.
The starting point for their Lordships was the judgment in Sidaway¹. The majority of the House of Lords in Sidaway had already expressed that the Bolam test would not necessarily apply to giving advice about treatment. However, it was also considered that a paternalistic approach of ‘too much information may be detrimental’ was entirely acceptable. There was also significance attached to whether a patient questioned the doctor about risk. The Supreme Court in Montgomery found this element of the Sidaway judgment to be “profoundly unsatisfactory”.
They went so far as to describe it as “a reversal of logic; the more a patient knows about the risks she faces, the easier it is for her to ask specific questions …….but it is those who lack such knowledge …… who are in the greatest need of information.”
Lord Kerr and Lord Reed gave the leading judgment in Montgomery in which they noted “social and legal developments point away from a model of the relationship between the doctor and the patient based upon medical paternalism……..”
Whilst there was conflicting expert evidence as to what was reasonable in the case, the Bolam test was held not to be applicable to questions of consent and risk. A doctor’s decision to discuss risks isn’t attributable to different schools of thought in medical science, but to different schools of thought in attitude towards patients.
The duty was clarified that doctors must “ensure that a patient is aware of material risk of injury that are inherent in treatment”.
But what is a ‘material risk’? At paragraph 87 of Montgomery, this is described as whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonable be aware that the particular patient would be likely to attach significance to it.” It is not a question of percentages.
Thus, it appears going forward that a risk could be material if:
(i) The likelihood of a consequence occurring is very small, but the potential consequences are very serious e.g. brain damage (as with Mrs Montgomery); or,
(ii) The consequences are not particularly serious, but the likelihood of a risk occurring is greater; or,
(iii) Where the consequences are not particularly serious and where the likelihood of a risk occurring is very low, but the particular circumstances of the patient makes the risk (or the potential benefit of alternative treatment) important.
Of course, it remains the position that a high likelihood of a very serious consequence occurring is clearly a material risk.
There remains the ‘therapeutic exception’; that a risk should not be disclosed if a doctor reasonably considers that doing so would be “seriously detrimental to a patient’s health”, but, except in circumstances where there is a need to urgently commence treatment such that there is no time to inform a patient of risks, it is difficult to envisage a typical situation in which this exception could be applied.
Montgomery is a decision that is likely not only to assist claimants, but potentially to change attitudes towards patients within the medical profession.
¹ Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1
Clinical Negligence Barrister 