A drastic change in law was about to take place Montgomery versus Lanarkshire Health board was such a case . In 2015 case of Mrs. Montgomery was taken to Supreme court the outcome place great emphasis on what a “reasonable patient” would want to know and there was a change in doctors legal duty for informed consent in the Supreme Court verdict.
Previously the legal position of consent according to the Bolam Test states that “ A doctor cannot be found Negligible where they have upheld a reasonable standard of care” this is to be determined by whether a Doctors action can be supported by a reasonable body of medical professionals. In a case of Consent where a patient claim of negligence on behalf of the doctor for inadequate disclosure by providing a reasonable body of other Medical Experts do the same, that Doctor could not be considered as Negligent further more the Bolam test introduced the concept known as Therapeutic Privilege where by a Doctor was entitled to withhold information that may scare a patient away from receiving treatment as you will see a drastic change in the Law which took place further case.
Montgomery Versus Lanarkshire Health Board  UKSC 11
Fact of the case
Mrs. Montgomery was expecting her first child and was diabetic she receiving obstetric care for her first child under the care of Doctor McLellan at Bellshill Maternity Hospital Lanarkshire in 1999. Mrs. Montgomery was suffering from diabetes so the child birth was considered high risk as a result the progress of her pregnancy was being monitor in a combined diabetic and obstetric clinic, it was indicated the Mrs. Montgomery baby was of larger than the average size a condition know an Macrosomia which was normal in maternal diabetics however throughout Antenatal care she was not informed of any increased risk. In cases such as Mrs. Montgomery there exist a risk of 10 % shoulder dystocia , a condition where the infant’s shoulder are too wide to pass thorough the Brachial plexus and this condition is considered as a obstetric emergency is associated with an increase in obesity and mortality for both mother and the infant.
Where the condition occurs?
One in five hundred children suffer with associated brachial plexus injury plus one in a thousand suffer with severe Hypoxia which may result in severe disability or Cerebral palsy or even death.
Mrs. Montgomery noticed that her baby was increasingly large during her 36 week of antenatal follow up which made her become anxious and concerned about her ability to deliver the baby vaginally. Dr McLellan noted her appreciation and made a decision to cancelled all the future scan as she felt it will worsen the mother’s anxiety. During the delivery of Mrs. Montgomery the obstetric team noted a shoulder dystocia had occurred and attempted appropriate maneuvers to assist the delivery of the child however due to the 12 minutes delay in delivery resulted in infant hypoxia sadly it was extensive enough to caused permanent disability for the child in the form of Cerebral Palsy.
Mrs. Montgomery Brought the Health Care Team to Court as she had concern regarding the quality of care provided to her on two account.
Two grounds of Negligence was claimed by Mrs. Montgomery in Scottish Court
- Firstly she had claimed that during her Antenatal Care she should have been informed regarding the risk of shoulder dystocia and could be provided with options of suitable alternative for example: A Cesarean section which were not discussed.
- Secondly regarding Negligence being performed at management of labor as during the Labor Doctor McLellan should have proceeded to Cesarean Section based upon the deteriorating Cardiotocography traces of the infant but the Doctors had not done it.
The case was taken up by the Scottish Court presided by Lord Ordinary and Lord Bannatyne but they both rejected Mrs. Montgomery claims on the basis that if Mrs. Montgomery been informed about the risk of shoulder dystocia and further complications, no difference in the outcome would have occurred as she would have still opted for a vaginal delivery. They stated that where she received the information , she would not have elected to have her baby delivered by Caesarean Section. Dr McLellan action also gained support from a reasonable body of a medical colleague here they agreed that under the circumstances it was reasonable to withhold information from Mrs. Montgomery regarding the risks with the aim of avoiding worsening of her anxiety further they supported the clinical decision made by Doctor McLellan during the delivery therefore the Bolam test supported Dr McLellan clinical practice at that time and he could not be considered negligent.
Supreme Court Verdict
Mrs. Montgomery was highly unsatisfied with the outcome of the Scottish Court and hence she lodge an appeal in the Supreme Court .The appeal was placed again on the basis of not being fully informed of the risk and further claimed that if she had been informed about the albeit small risk of shoulder dystocia and its potentially serious consequences, she would have opted for a C- Section and this claim was accepted by the supreme Court.
The Supreme Court acknowledged that The Royal College of Obstetricians and Gynecologists recognized shoulder dystocia as a major obstetric emergency which carries significant risk to both mother and baby when considering Mrs. Montgomery case this risk was around 10 % .The Supreme Court ruled out that “The decision of the house of Lords In the Bolam’s case should no longer be followed as it was based upon a view of a doctor patient relationship that has ceased to reflect reality”
They moved on to state that the patient should not be viewed as uninformed and incapable of understanding the medical matters as adults are capable of understanding that medical treatment is uncertain of success and may involve risk of accepting responsibility for risks affecting their lives , and living with the consequences. Further more it was declared that the duty upon the Doctors is to ensure that their patients is aware of any material risk in proposed treatment plus any reasonable alternative. Material risk here was define as what a reasonable person in the patient position would attach significance to or a doctor is aware that a patient is likely to attach significance to.
The Supreme Court ruled in favor of Mrs. Montgomery permitting her to claim damages for her child this was based upon the fact that when the Supreme Court applied the approach in Mrs. Montgomery case that
“The doctor should have informed the mother of the substantial risk which was know to exist and the alternative of an elective Caesarean section, if the mother was so informed she would have elected for a Caesarean section and the baby would have delivered unharmed”.
This was a landmark case leading to a drastic change in the previous Bolam Test. Previously the Courts evaluated that whether the Doctor conduct will be supported by a reasonable body of medical opinion but this test from this point onward was no longer applied to the issue of consent although it would continued to be used more widely in the cases involving other alleged act of Negligence. The current legal position therefore moved away from the paternalistic Bolam principle now there is a legal duty of the Doctor to ensure that the patient is aware of any material risks as determine by what a reasonable person would wish to know in the circumstances and any reasonable alternative treatments.
This case brief has been written by Tanisha.