Abstract
Introduction
Summoned urgently, like Fabius Cunctator, from behind the plough in my retirement, I am asked to comment on the seminal judgment of the Supreme Court in Montgomery v Lanarkshire Health Board, given on 11 March 2015.
The unanimous judgment of the court, reversing the highly questionable decisions of both the Scottish court of first instance and the Scottish Appeal Court, represents little short of a cataclysmic (if not altogether unexpected) change to the law on the duty of a medical practitioner to disclose to the patient the risks of the treatment proposed and possible alternatives. Put shortly, the court said in effect that the Bolam principle, even when mitigated to an extent by the rider introduced in Bolitho, had no business now in the context of the failure of a medical practitioner to disclose the risks of a proposed procedure, as opposed to the context of medical treatment itself. The court, overruling in effect the decision of the House of Lords in Sidaway [1985] AC 871, made it clear that, in this day and age, society demanded that, except in the very occasional case where full disclosure carried a real risk of harming a vulnerable patient, the practitioner had to give the patient the fullest possible information on all risks and possible other options (including doing nothing), so that the patient could make a fully autonomous decision about what he or she wanted done to his/her body.
I pointed out in the sixth edition of my book Clinical Negligence in 2006 that some judges, notably Lord Woolf, had already whittled away as best they could at the Sidaway decision (which at most, when properly analysed, was the decision of a bare majority) so as to bring our law in line with what had been the law for some years in Australian and Canadian jurisdictions. That law stated that the patient had to be informed of all matters which might reasonably affect his or her decision regardless of what doctors were or were not doing in that respect. That is why that law is called the law of informed consent. We now have it as part of our law by virtue of this decision from the Supreme Court.
The facts
The matter came about in the following way.
Nadine Montgomery, a university graduate who worked for a pharmaceutical company as a hospital specialist and who was diabetic (and therefore liable to have a big baby), gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital. As a result of complications by way of shoulder dystocia during the delivery and consequent difficulties in effecting delivery, the baby was born with severe disabilities. She attributed those injuries to negligence on the part of Dr Dina McLellan, a consultant obstetrician and gynaecologist employed by Lanarkshire Health Board, who was responsible for Mrs Montgomery’s care during her pregnancy, labour and the delivery. The negligence alleged that is relevant to this article was that mother ought to have been given advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) which would be involved in a vaginal birth, and informed of the alternative possibility of delivery by elective caesarean section. The causation alleged was that proper warning would have led mother to opt for a virtually risk-free caesarean section.
Both Scottish courts rejected the allegations of negligence and of causation.
Comment
This was rightly regarded as a high-risk pregnancy requiring intensive monitoring. At first sight, one might think that it was quite obvious that she should have been told of the substantial risk of shoulder dystocia (9%–10%) and the much smaller risk of substantial injury as a result. One would feel confirmed in that view by the surprising evidence of Dr McLellan that in effect she did not want mother to have the option of a caesarean as she was not as a general rule in favour of that form of delivery. She said that it was not her practice to warn of shoulder dystocia because if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections.
How on earth the Scottish courts managed to find that attitude acceptable is hard to fathom, unless one can put it down to an out dated reactionary mind set. As Lady Hale said, who added a short concurring judgment in the Supreme Court: This does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter.
Further evidence of Dr McLellan
She accepted that mother had expressed concern at that appointment about the size of the foetus and about the risk that the baby might be too big to be delivered vaginally and that it was possible that she had expressed similar concerns previously. Certainly, she said, such concerns had been mentioned more than once. She stated that Mrs Montgomery had not asked her “specifically about exact risks”.
Further comment
It is again most strange that the Scottish courts (see below) were prepared to make a distinction between expressing concerns (as set out above) and asking specifically to know of the risks, so that the duty to disclose them only arose in the latter context. Talk about splitting hairs! (To the prejudice of the patient – of course.)
Causation
On the issue of causation mother said that, if she had been told of the risk of shoulder dystocia, she would have wanted Dr McLellan to explain to her what it meant and what the possible risks of the outcomes could be. If she had considered that it was a significant risk to her (and, in the light of what she had subsequently learned, she would have assessed it as such) she would have asked the doctor to perform a caesarean section.
As you would expect, the defence produced doctors to say that the failure to warn of the risk of shoulder dystocia in this case was acceptable because the risk of serious injury as a result was so small and – here, as I have already indicated, they seem to be shooting themselves in the foot (or feet) – warning “would actually make most women simply request caesarean section.”
Below
In the court of first instance, the Lord Ordinary took what seems to me to be both a conservative and a harsh or at least an unsympathetic approach to the case. Put briefly, he held that the allegation of negligence failed because the evidence of the experts for the defence established that a responsible body of medical opinion would have acted as Dr McLellan acted, and, further, that the Bolitho exception did not apply because for a risk to fall within that exception it must be a substantial risk of grave adverse consequence, not merely consequences such as shoulder dystocia, which would normally be handled without resultant injury. He also held that, although it was generally agreed that if a patient enquired about the risks the practitioner would be obliged to disclose them, in this particular case the defendant had not actually enquired about “specific risks” but had merely “expressed concerns” about the size of her baby and her ability to deliver vaginally.
On causation, the judge concluded, despite mother’s contrary evidence, that she would not have opted for a section even if warned. Breath taking arrogance, did I hear you say?
It is sufficient for this article to say that appeal court took the same misguided view on the issues as the lower court.
Above
The law
The Supreme Court undertook an exhausting analysis of the judgment of the House of Lords in Sidaway, exhausting in both senses, as it had to be because they were determined to show (as I believe I had already shown in my book) that the wholesale application of the Bolam test to the context of failure to disclose risks was not actually what most of the judges were endorsing – most particularly Lord Scarman who certainly was not. The only judge who could be seen to have given an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment was Lord Diplock.
In a seminal passage the Supreme Court said: There is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about. It is indeed a reversal of logic: the more a patient knows about the risks she faces, the easier it is for her to ask specific questions about those risks, so as to impose on her doctor a duty to provide information; but it is those who lack such knowledge, and who are in consequence unable to pose such questions and instead express their anxiety in more general terms, who are in the greatest need of information. Ironically, the ignorance which such patients seek to have dispelled disqualifies them from obtaining the information they desire. Secondly, this approach leads to the drawing of excessively fine distinctions between questioning, on the one hand, and expressions of concern falling short of questioning, on the other hand: a problem illustrated by the present case. Thirdly, an approach which requires the patient to question the doctor disregards the social and psychological realities of the relationship between a patient and her doctor, whether in the time-pressured setting of a GP’s surgery, or in the setting of a hospital. Few patients do not feel intimidated or inhibited to some degree… An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. 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.
Approaching the present case on this basis, there can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section… The contrast of the risk involved in an elective caesarean section, for the mother extremely small and for the baby virtually non-existent, is stark and illustrates clearly the need for Mrs Montgomery to be advised of the possibility, because of her particular circumstances, of shoulder dystocia. This conclusion is reinforced by Dr McLellan’s own evidence, that she was aware that the risk of shoulder dystocia was likely to affect the decision of a patient in Mrs Montgomery’s position, and that Mrs Montgomery herself was anxious about her ability to deliver the baby vaginally.
Causation in the Supreme Court
On causation, the Supreme Court, who, if I may say so without impertinence, clearly regarded the conclusion of the lower courts as quite untenable (bizarre, I would have thought), was required to go to considerable lengths, which they successfully did, to avoid being bound by a conclusion of fact upon the evidence reached by a lower court. They managed to find, not unreasonably, that the judge at first instance had failed to consider all the appropriate evidence before reaching his conclusion on causation. So the Supreme Court was able to say: Those circumstances constitute a compelling reason for concluding that there was a failure by the Lord Ordinary to consider relevant evidence; a failure which also affected the decision of the Extra Division…. The only conclusion that we can reasonably reach is that, had [Dr McLellan] advised Mrs Montgomery of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, Mrs Montgomery would probably have elected to be delivered of her baby by caesarean section. It is not in dispute that the baby would then have been born unharmed.
Footnotes
Editor’s note
In days past when I conducted seminars and talks based on the doctrine of informed consent and rehearsed the facts in Sidaway and asked a room full of doctors whether they would have wished the further information denied to Mrs Sidaway (the 1%–2% risk of damage to the spinal cord) before deciding to have a back operation for back pain, the room admitted it would want to know this by overwhelming majority or total unanimity. Quite why it should have been supposed (by the majority in the House of Lords and below, but with Lord Scarman dissenting) that a lay person would not want this important information and deem it necessary to make an informed judgment seems hard to justify and illogical. It may have stemmed from a desire to protect authoritarian doctors from patients who lacked the confidence or prior information to ask the right questions or to protect patients from being unduly fearful of accepting treatment that would, statistically and by their treating doctors, be regarded as in their best interests.