Nadine Montgomery gave birth to her son on 1st October 1999 at Bellshill Maternity Hospital She was described as being of small stature and diabetic. It is well known that babies born to diabetic mothers are larger than normal. Mrs Montgomery was treated as a high risk pregnancy and monitored accordingly . As a result of complications during labour, her baby was born with severe disabilities. Mrs Montgomery sought damages, claiming negligence on the part of Dr Dina McLellan, a consultant obstetrician and gynaecologist.
Two grounds of negligence were advanced. The first was that the pursuer should have been given advice about the risks of shoulder dystocia ( the baby's shoulders being unable to pass through the pelvis) and of the alternative of an elective caesarean. The second ground concerned the management of the labour.
At first instance, both grounds of fault were rejected . The Lord Ordinary based his decision on the majority approach in Sidaway. He also concluded that, even if the pursuer had been warned of the risks, it would have made no difference, as she would not have elected for a caesarean.
That decision was upheld by the Inner House.
The appeal to the Supreme Court concentrated on the first ground of negligence. The court was invited to depart from Sidaway and reconsider the duty of a doctor towards a patient in relation to advice about treatment.
The Law in Sidaway
In Sidaway, the House of Lords concluded that the applicable test when considering negligence in the context of giving or omitting to give advice, was the well known test in Hunter v Hanley or the equivalent Bolam test. That is, whether the omission was accepted as proper by a responsible body of medical opinion. If it was, there could be no negligence.
On the evidence in this case, the Lord Ordinary accepted that Dr McLellan's decision not to advise Mrs Montgomery of the risks of shoulder dystocia was justified by the body of medical opinion. Although there was a significant risk of dystocia occurring in the case (9-10%), the risk of grave adverse consequences arising from dystocia was very small, so small there was no need to advise the patient. The expert witnesses for both sides agreed that what Dr McLellan did was broadly in accord with accepted practice.
The Supreme Court unanimously rejected that as a proper view of the law. In the context of providing advice, negligence was not to be determined by a failure to follow responsible medical opinion, rather whether the advice should be given is dependent on the risks of the treatment proposed . As the Supreme Court puts it:
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.
Measured against that test, Dr McLellan's decision not to advise of the risks of dystocia and discuss the caesarean alternative was held to be negligent. Dystocia was described as a major obstetric emergency, dealt with by very significant intervention. The risks of a caesarean to the mother was very small and to the baby virtually nil. There were material risks, in the sense that someone in the Mrs Montgomery's position would attach significance to them.
The Supreme Court found that the Lord Ordinary had not considered all the evidence when concluding that Mrs Montgomery had failed to meet the 'but for' test of causation. Had Mrs Montgomery been told of the risk of shoulder dystocia, the Supreme court concluded that there as no doubt she would have elected for a caesarean. Indeed, it was precisely because Dr McLellan anticipated this outcome (which she did not consider in the patients best interests) that she didn't advise Mrs Montgomery of the risks and alternatives in the first place.
The Supreme Court felt it unnecessary to consider whether , if 'but for' causation was not established that causation on a different basis might have been established. An argument had been advanced that causation was determined not by what Mrs Montgomery would have done, had she been advised of the risks. It was enough that a risk of grave consequences had in fact materialised to find causation. That is an argument for another day...
By placing the patient at the centre of the need for informed consent, the Supreme Court has marked a further step away from the traditional view that the professional knows best and that a professional's conduct can only be judged against the practice of like professionals.
This decision reflects and reinforces current good clinical practice and should be welcomed by professional and patient alike.