New decision confirms the end of the Bolam test in consent cases
Judgment in the appeal case of Montgomery v Lanarkshire Health Board (Scotland) [2015] was handed down by the Supreme Court last week. Whilst this is a Scottish case, the decision represents an important clarification of the law in respect of consent in clinical negligence cases which is also highly relevant in England and Wales. It is now very clear following Montgomery that the Bolam test does not apply in consent cases.
The very unfortunate circumstances which led to this case were as follows. Mrs Montgomery was a degree educated professional who worked for a pharmaceutical company. In 1999, she became pregnant with her first child. She was only just over five feet tall, and more importantly, was an insulin dependent diabetic. At that time, it was well known that sufferers of diabetes mellitus were at risk of having larger than average babies. In addition, those babies can have a concentration of weight in their shoulders; making that the widest part of their body, rather than the head which is usually the widest. Therefore, although the baby’s head might be able to pass through the birth canal, there is a risk that the shoulders will be too wide to do so, causing the baby to become lodged. This is known as shoulder dystocia and is the prime concern in a diabetic pregnancy and labour. Should it occur, it can pose a serious risk to both the baby and the mother. In respect of the baby, it can lead to a brachial plexus injury and in certain circumstances, to a hypoxic brain injury and even death.
Mrs Montgomery was classed as high risk and was closely monitored during her pregnancy. She remained under the care of Dr McLellan at Bellshill Maternity Hospital throughout. Mrs Montgomery was told that her baby was of above average size and indeed voiced concerns about her ability to give birth to the baby vaginally. However, she was not told of the 9-10% risk of shoulder dystocia occurring during labour. In her evidence, Dr McLellan said that whilst this was a high risk, she considered that the risk of a grave problem occurring for the baby was small and therefore she did not discuss it with Mrs Montgomery. She went on to say that if it was discussed with every diabetic mother to be, they would all opt for a caesarean section which in her view was not in their best interests.
Mrs Montgomery duly attempted a natural delivery. Unfortunately, the baby’s shoulders became lodged in the birth canal at the point when half of his head was outside the perineum. Dr McLellan decided that a Zavanelli manoeuvre (which involves pushing the head back into the birth canal so that a caesarean section can be performed instead) was not appropriate and she instead tried to complete the delivery. She managed to pull the baby out some 12 minutes later. Unfortunately, during those 12 minutes, the umbilical cord was occluded and the baby was deprived of oxygen. He suffered a brachial plexus injury during the delivery which resulted in paralysis of one arm and he was later diagnosed as suffering from cerebral palsy. It was accepted that had a caesarean section been performed instead at the outset, he would have been born unharmed.
The case turned on both of the issues of consent and causation.
The Lord Ordinary at first instance rejected Mrs Montgomery’s argument that she should have been told of the risk of shoulder dystocia occurring and of the alternative of caesarean section. He applied the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) as to whether that omission was accepted as appropriate by a responsible body of medical opinion. On hearing the evidence, he considered that it was.
He also considered the speech of Lord Bridge in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 who stated that there may be circumstances where the proposed treatment involved a risk of grave adverse consequences in which a judge could conclude, regardless of any practice to the contrary, that a patient’s right to decide whether to consent to it was so obvious that no prudent medical practitioner could fail to warn of the risk. However, the Lord Ordinary’s view was that this did not apply in Mrs Montgomery’s case. In his opinion, although the risk of shoulder dystocia was significant, the risk of grave injury to the baby was so small that there was no duty to warn of it. In addition, he did not accept that Mrs Montgomery had ‘raised questions of specific risks’ in respect of vaginal delivery and therefore no duty to warn had arisen. In any event, he found that Mrs Montgomery would not have opted for a caesarean section even if she had been told of the risks.
Mrs Montgomery appealed to the Inner House of the Court of Session. She argued that the decision in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 departed from Sidaway so that a medical practitioner was required to inform a patient of any significant risk which would affect the judgment of a reasonable patient. Lord Eassie however applied Sidaway and therefore the Bolam test and her appeal was dismissed. Whilst Lord Eassie also considered the approach of Lord Bridge in Sidaway, he considered that the relevant risk was not of shoulder dystocia occurring, but of the ‘much smaller risk of a grave adverse outcome’. Like the Lord Ordinary, he also did not accept that Mrs Montgomery had raised questions of specific risks. In addition, on the issue of causation, Lord Eassie distinguished Chester v Afshar [2004] UKHL 41 on the basis that the birth of a baby ‘could not be deferred’ and found that the appellant would not have opted for a caesarean section even if she had been informed of the risks.
Mrs Montgomery therefore appealed to the Supreme Court. Judgement was given by Lords Kerr and Reed, with four Lords and Lady Hale in agreement. Their Lordships considered the previous case law in respect of consent in some detail. They noted that in Sidaway, Lord Scarman’s starting point was ‘the patient’s right to make his own decision, which may be seen as a basic human right protected by common law’. His view was that a patient would have a potential cause of action if that patient had suffered damage as result of a risk that was not disclosed to him/her, which would have been disclosed by a doctor who exercised reasonable care to respect that patient’s right to make his/her own decision and that the injury would have been avoided if the risk had in fact been disclosed. Therefore, it follows that a doctor is under to a duty to disclose material risks to a patient. They noted that whilst Sidaway remained a binding decision, the lower Courts in England and Wales had in fact moved away from applying the Bolam test in consent cases and instead were essentially adopting Lord Scarman’s approach. Indeed, the position of Lord Scarman was echoed by Lord Woolf MR in his speech in Pearce v United Bristol Healthcare NHS Trust [1999].
Their Lordships also considered Wyatt v Curtis [2003] EWCA Civ 1779 where it was held that it was unreasonable to place the responsibility on the patient to ask questions about specific risks so that a doctor could avoid liability if that patient had not done so.
The Supreme Court therefore concluded that the Bolam test was not appropriate in consent cases stating at paragraph 87 of the judgment:
‘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 significant to the risk, or the doctor is or should reasonable be aware that the particular patient would be likely to attach significance to it.’
In respect of Mrs Montgomery, they found that the risk of shoulder dystocia occurring was substantial and that she should have been advised of that risk. The question was not of the consequent risk of grave injury to the baby occurring but of the risk of shoulder dystocia occurring and that risk was a material one. On the issue of causation, their Lordships found that had the risk of shoulder dystocia and its potential consequences been discussed with Mrs Montgomery, then she would probably have opted to have a caesarean section. Thus, causation was established.
Montgomery is therefore an important case not only for Scotland. It updates the approach of Lord Scarman in Sidaway and confirms that patients today are well informed and capable of understanding medical issues. They have rights, including the right to have the risks of treatment properly discussed with them so that they can make an informed decision on how to proceed. This of course does not affect the situations where treatment is necessary and consent cannot be obtained (for example where a patient is in a coma) or where disclosure of a risk might be detrimental to a patient’s health. Instead, it recognises that patients are entitled to make decisions about treatment options which could affect them for the rest of their lives.