THE Supreme Court recently published its judgment on a landmark medico-legal case in Scotland. Montgomery v Lanarkshire Health Board involved allegations in relation to birth-related injuries and has attracted a lot of publicity because of the £5.25 million award. But the case is also highly significant in medico-legal terms in that it crystallises the law in relation to consent – more specifically issues around the amount of information a patient is entitled to be told before making a treatment decision.
The case arose in 1999 when Nadine Montgomery gave birth to her son, Sam, at the Bellshill Maternity Hospital in Lanarkshire. Staff had to resort to a forceps delivery aided by symphysiotomy after the baby’s head failed to descend due to shoulder dystocia. Twelve minutes passed between the head appearing and delivery, during which time the cord was completely or partially occluded. Sam was diagnosed with significant cerebral palsy.
Later Mrs Montgomery – acting on behalf of her son – raised an action against the health board alleging negligence in that she should have been given advice regarding the risk of shoulder dystocia, being just over five feet tall and diabetic. She also alleged that it was negligent not to perform a caesarean section when abnormalities were noted on the cardiotocograph (CTG) traces.
The main focus of the appeal was in regard to the information given to Mrs Montgomery when she had expressed concern about being able to deliver her baby vaginally – though she had not asked specific questions regarding shoulder dystocia. Maternal diabetes is known to increase the risk of complications such as shoulder dystocia – which occurs in around 10 per cent of babies born to diabetic mothers. In around 70 per cent of cases it can be overcome by simple manoeuvres but a small proportion (much less than 1 per cent) result in permanent injury.
The consultant involved in the case did not advise Mrs Montgomery of the risk of shoulder dystocia as in her view – supported by obstetric opinion – this was not warranted given the low probability of permanent harm. Mrs Montgomery argued that had she been fully advised of the risks, she would have elected for a caesarean section.
Initially Mrs Montgomery lost her case before the Outer House of the Court of Session in Edinburgh and then again on appeal before the Inner House. She then took her case to the Supreme Court in London where she was successful and her appeal allowed.
It cannot be left to the doctor to determine what is reasonable to disclose; the move is to what a patient would attach importance to
This case is important to all doctors and dentists involved in consent discussions with patients as it sets out very clearly what is expected in terms of information disclosure: the focus being on matters the patient would regard as significant which may not be the same in the clinician’s opinion.
The key statements in the judgment pull together previous case law and guidance from, amongst others, the GMC. There is a move away from non-disclosure of a risk based on percentages: “... it follows … that the assessment of whether a risk is material cannot be reduced to percentages”.
The judgment also states that it cannot be left to the doctor to determine what is reasonable to disclose; the move is to what a patient would attach importance to. In addition, the Courts have the final say in “determining the nature and extent of a person’s rights….not the medical profession’s”.
At paragraph 87 the judgment states: “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.”
The patient does not have to ask specific questions – and it has been pointed out that it is unreasonable to expect a lay person to know what questions to ask – but if they are expressing some concerns the questions which would naturally flow from those concerns must be explored and answered fully.
There are some exceptions: where the patient has made it clear they do not wish to be informed of risks of injury, where the disclosure would (in the reasonable exercise of medical judgment) be seriously detrimental to the patient’s health, and in an urgent or emergency situation.
Whilst this specific judgment is about an obstetric case, the principles apply to consent in all fields of practice.
Consent more than routine
The judgment makes specific comment about what is expected in the dialogue with the patient and the doctor’s role, when at paragraph 90 it states: “This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.”
All doctors involved in discussions with patients about consent will therefore need to be sufficiently well-informed and trained in how to obtain fully informed consent. They must be able to identify when a patient may need more information and a greater understanding in order to make a decision about the treatment they agree to have.
The judgment runs to 38 pages and clearly this article provides only the briefest commentary – but at paragraph 107 the message is very clear: “This case has provided us with the opportunity, not only to confirm… [that the need for informed consent was firmly part of English law], but also to make it clear that the same principles apply in Scotland.”
This judgment provides the stimulus for doctors and dentists to reflect on their practice regarding consent. As usual we would advise that members keep clear, relevant and unambiguous notes of consent discussions and carefully check any proformas or standard information leaflets that are in use.
Should a member have any questions or concerns regarding consent please contact the MDD US for specific advice as necessary.
Dr Gail Gilmartin is a medical and risk adviser at MDDUS