Guest post by Kirsty Keywood (University of Manchester)
On 11th March Nadine Montgomery won her case before the UK Supreme Court to gain compensation for the failure of her obstetrician to warn her of risks associated with the vaginal delivery of a large infant – a risk which she would have averted by requesting a caesarean section. Shortly after his birth, her son was diagnosed with cerebral palsy and a brachial plexus injury, resulting from the occlusion of the placenta during a “very stressful” vaginal delivery.
Nadine Montgomery had diabetes, which increased her chances of giving birth to a larger than average-sized baby. This, in conjunction with her small stature (she was 5 feet tall), indicated a risk that a natural delivery would bring with it a 9-10% chance of shoulder dystocia. Were dystocia to occur, attempts to dislodge the infant’s shoulders through mechanical manoeuvres would generate a risk of occlusion of the umbilical cord resulting in death or cerebral palsy of 0.1%. According to the obstetrician, Dr McLellan, the risk of shoulder dystocia did not merit specific mention in discussions with diabetic patients, because the risk of an adverse event associated with shoulder dystocia was very small indeed.
Mrs Montgomery’s case before the UK Supreme Court hinged on the question of the nature of the obstetrician’s duty to the patient. Was the obligation to warn of inherent risks to be determined by reference to the Bolam principle – a principle which enables the judiciary to determine liability in cases where the defendant possessed skills and expertise that are beyond the ability of the judge to determine without expert testimony? Or was the obligation to warn the patient anchored to a competing legal principle, notably the doctrine of informed consent? Informed consent and the importance of patient autonomy in making health care decisions had long become a cornerstone of health care law and practice, so it was with some surprise that news of the lower courts’ ruling in Montgomery’s case had adopted a particularly ‘hard line’ approach in her case.
Sidaway, Bolam, and Information Disclosure
The lower courts in Mrs Montgomery’s case had steadfastly adhered to the view that the failure to warn of risks and alternative procedures would only be negligent if it was not supported as proper by a responsible body of medical opinion. In so doing, they relied upon the 30-year-old ruling from the House of Lords in Sidaway v Bethlem Royal Hospital. Sidaway held that there would be no breach of the doctor’s duty of care in negligence if the failure to warn of risks was accepted as proper by a responsible body of medical opinion. In short (and subject to the power of the judiciary to intervene in the starkest cases, a point to which we shall return later), it was medical opinion that became the arbiter of negligence in the courtroom.
Although the majority in the House of Lords in Sidaway differed in their conceptualisation of the clinician’s legal obligation, they were agreed that matters of information disclosure were part and parcel of the clinical expertise in much the same was as matters of diagnosis and treatment. In consequence, it would not be appropriate for the judiciary to challenge the correctness of such ‘specialist’ decisions, but would be reliant on expert testimony in determining whether the defendant’s practice was supported by a responsible body of opinion. If such support existed, and provided that the supporting medical practice could be considered ‘responsible’, there would be no liability in negligence.
In Mrs Montgomery’s case, Dr McLellan’s failure to warn was indeed supported by medical opinion. Moreover, the lower courts did not identify this case as falling within the small group of cases whereby the courts would find negligence even where a body of medical opinion supported the defendant’s course of action. Lord Bridge in Sidaway had indicated that the failure to warn of “a substantial risk of a grave adverse consequence” may result in breach of the doctor’s duty of care. For the lower court judges, the risk generated by shoulder dystocia generally was not sufficiently grave and the risk of cerebral palsy in particular was not sufficiently substantial. For that reason, Mrs Montgomery’s case failed.
The Supreme Court had to consider the impact of the Court of Appeal ruling in the case of Pearce v United Bristol NHS Trust which had prompted a significant shift in the courts’ approach to medical malpractice cases involving information disclosure. In that case, Lord Woolf sought to advance the case for a doctrine of informed consent without casting doubt on the credibility of Sidaway. He had concluded that a doctor would be liable in negligence if he failed to alert the patient to significant risks which would affect the judgment of the reasonable patient. The case was significant for its implication that (reasonable) patients were the appropriate arbiters of the information that doctors should be required to impart. Indeed subsequent cases sought to balance the demands of Sidaway and Pearce, recognising that the sorts of risks that patients and doctors considered to be worthy of disclosure varied greatly.
Taking comfort from developments and home and abroad, in law and professional guidance, the Supreme Court noted that that the foundations of the law on information disclosure are now oriented to safeguarding patient autonomy, rather than providing clinician’s with any sort of legal ‘flak jacket’. If the wrong that occurs in these cases is that the patient has been denied information which in turn undermines her capacity for autonomous action, there is no space in this analysis to account for the clinician’s concerns that the risk is, in her view, insignificant. It is the patient’s perspective on risk disclosure (or, more likely, the reasonable patient’s perspective if there is little or contested evidence about what, exactly, this particular patient would have wanted to know) that determines whether the clinician has breached her duty. Indeed, the Court in this case acknowledge that Bolam principle in this area served to sanction “divergent attitudes among doctors as to the degree of respect owed to their patients”, rather than providing any credible measure of the amount of information that patients need to receive to make decisions that are consistent with their wishes, believes and values.
That said, clinicians may have an over-riding duty to protect their patients from the potentially harmful consequences of information disclosure. The ‘therapeutic privilege’ serves to justify non-disclosure in order to avoid some greater harm to the patient. The Montgomery ruling paves the way for a clearer exposition of the ‘therapeutic privilege’ that will, in exceptional cases, enable the clinician to withhold information from her patient, even if that information ought normally to be disclosed. It seems likely that the Bolam principle will continue to play a role here if there are features surrounding the patient’s health circumstances that indicate the provision of information is likely to be psychologically damaging, for example. How interventionist the courts will be in responding to claims about therapeutic privilege remains to be seen.
Judgments, Values, and Childbirth
Finally, the ruling offers some interesting reflections on the choices made about childbirth. The duty Mrs Montgomery claimed that had she been informed about the risk of shoulder dystocia, she would have requested a caesarean section. The defendant obstetrician confirms this view, noting that “if you were to mention shoulder dystocia to every [diabetic] patient, 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”. The rise in the number of caesarean sections has undoubtedly caused concern in many quarters. Lady Hale offers a robust defence of the choice of women like Mrs Montgomery, who have are at a heightened risk from vaginal delivery. Lady Hale expresses concern at Dr McLellan’s rationale that offering a caesarean was not appropriate because “…it’s not in the maternal interests for women to have caesarean sections”. According to Lady Hale, “Whatever Dr McLellan may have had in mind, 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.” The ruling in Montgomery calls for conversations between patients and doctors about how best to make sense of the data on risks and side-effects in such a way that the patient can apply it to their own circumstances and reach a decision that she can live with. Questions about how information is to be appropriately communicated are likely to become key. Whether the necessary resources will be made available to support these choices remains to be seen.
  48 BMLR 118.
 See, eg Gibbons et al, The Global Numbers and Costs of Additionally Needed and Unnecessary Caesarean Sections Performed per Year: Overuse as a Barrier to Universal Coverage, World Health Report (2010) Background Paper, No 30.