Montgomery v Lanarkshire Health Board (2015)

For decades the question of what a doctor must tell a patient about the risks of treatment was answered by the Bolam test: a doctor was not negligent if a responsible body of medical opinion would have said just as little. The House of Lords applied that approach to advice about risk in Sidaway (1985).

Montgomery ends that. The UK Supreme Court held that whether a risk ought to be discussed with the patient is not a matter of purely professional judgment, because it concerns the patient's own right to decide what risks to run. In the Court's words, "There is no reason to perpetuate the application of the Bolam test in this context any longer."

In its place the Court set a patient-centred test of materiality. Every answer on medical negligence and consent should now separate two things: Bolam for diagnosis and treatment, and Montgomery for disclosure of risk.

Nadine Montgomery was expecting her first baby in 1999. She was of small stature (just over five feet) and suffered from insulin dependent diabetes. Diabetic mothers are likely to have larger than normal babies, with a particular concentration of weight on the shoulders. Hers was treated as a high risk pregnancy, and she was under the care of Dr Dina McLellan, a consultant obstetrician employed by Lanarkshire Health Board, at Bellshill Maternity Hospital.

She was told she was having a larger than usual baby, but she was not told of the risk of shoulder dystocia — the inability of the baby's shoulders to pass through the pelvis during a vaginal birth. It was agreed that this risk "was 9-10% in the case of diabetic mothers". Dr McLellan accepted this was a high risk, but her practice was not to discuss it, because she thought the risk of a grave problem for the baby was very small, and because if it were mentioned, "most women will actually say, 'I'd rather have a caesarean section'". She added that "it's not in the maternal interests for women to have caesarean sections". Mrs Montgomery had expressed concern about the size of the baby and about her ability to deliver vaginally.

During the delivery on 1 October 1999 shoulder dystocia occurred. In the 12 minutes between the baby's head appearing and the delivery, the umbilical cord was occluded and the baby was deprived of oxygen. He was born with cerebral palsy of a dyskinetic type affecting all four limbs, and with Erb's palsy. If Mrs Montgomery had had an elective caesarean section, her son would have been born uninjured.

She sued on his behalf. Two grounds of negligence were argued in the Court of Session: (1) failure to advise her of the risk of shoulder dystocia and of the alternative of an elective caesarean section; and (2) negligent management of labour. The Lord Ordinary rejected both, applying Sidaway and the expert evidence of medical practice, and the Extra Division (Inner House) upheld him. The appeal to the Supreme Court focused on the first ground, and asked the Court to depart from Sidaway.

1. Is a doctor's duty to advise a patient about the risks of proposed treatment governed by the Bolam test (as the majority held in Sidaway), or by some other standard?
2. If a different standard applies, what risks must be disclosed?
3. On the facts, was Dr McLellan in breach of that duty?
4. Causation: had she been told of the risk, would Mrs Montgomery have chosen a caesarean section?

The appeal was allowed. The conclusion reads: "For these reasons, we would allow the appeal."

The Sidaway/Bolam approach is abandoned for disclosure of risk

The Court distinguished two roles of a doctor. Deciding what investigations or treatment are possible, and what risks they carry, is an exercise of professional skill. But "it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment." The patient's decision "may be influenced by non-medical considerations", and "Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions."

Applying Bolam to disclosure was also liable to sanction differences in practice due "merely to divergent attitudes among doctors as to the degree of respect owed to their patients."

The Court held that the analysis of the majority in Sidaway was "unsatisfactory", and that the correct position was substantially that of Lord Scarman in Sidaway and Lord Woolf MR in Pearce, refined by the High Court of Australia in Rogers v Whitaker.

The new test

"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."

Materiality: "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."

Exceptions

• Therapeutic exception: the doctor may withhold information about a risk "if he reasonably considers that its disclosure would be seriously detrimental to the patient's health."
• Necessity: e.g. where the patient needs urgent treatment but is unconscious or otherwise unable to decide.
• A patient may also choose not to be told; a doctor need not discuss risks with someone who makes clear she would prefer not to.

The Court said it was unnecessary in this case to consider the scope of those exceptions in detail.

Three further points

1. Materiality "cannot be reduced to percentages". It depends on the nature of the risk, its effect on the patient's life, the importance of the benefits sought, the alternatives and their risks. It is fact-sensitive and sensitive to the characteristics of the patient.
2. The advisory role "involves dialogue". The 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."
3. The therapeutic exception must not be abused: "it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests."

The Court answered the objections (defensive medicine, time pressure, more litigation, less predictability) and concluded: "The more fundamental response to such points, however, is that respect for the dignity of patients requires no less."

Application — breach

"There can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section." The lower courts had wrongly focused on the small risk of grave injury to the baby; the risk of shoulder dystocia itself was substantial, around 9-10%, and shoulder dystocia is itself a major obstetric emergency with significant risks to the mother. The therapeutic exception did not help: Dr McLellan's policy of withholding the information because patients would request caesarean sections was exactly what the exception does not permit.

Application — causation

Appellate courts are slow to disturb findings of fact, but here the Lord Ordinary had failed to consider relevant evidence — including Dr McLellan's own evidence that, had she raised the risk, Mrs Montgomery "would have no doubt requested a caesarean section, as would any diabetic today". More fundamentally, the right question was how Mrs Montgomery would have reacted if told of the risk of shoulder dystocia, not of the minimal risk of a grave outcome. The Court concluded that she "would probably have elected to be delivered of her baby by caesarean section", and it was not in dispute that the baby would then have been born unharmed. It was therefore unnecessary to decide whether Chester v Afshar offered an alternative route to causation.

Lady Hale's concurring judgment

Lady Hale agreed, stressing that the interest protected includes the patient's autonomy, and that a procedure cannot be considered "in isolation from its alternatives". Once the question turns on value judgments rather than purely medical ones, "the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite." She ended: "Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being."

A doctor owes a duty to take reasonable care to ensure that the patient is aware of any material risks involved in recommended treatment and of any reasonable alternative or variant treatments. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that this particular patient would. That duty is not measured by the Bolam test of responsible medical opinion; it is subject only to a narrow therapeutic exception and to necessity.

• Direct question: Is the Bolam test still the standard for a doctor's duty to disclose risks? Discuss with reference to Montgomery v Lanarkshire Health Board. Explain Bolam, its extension to advice in Sidaway, and Montgomery's materiality test, quoting it.
• Pair with Indian law: when writing on Jacob Mathew v State of Punjab, note that Bolam has been displaced in England on disclosure of risk by Montgomery, while still governing treatment decisions.
• Problem question: a doctor fails to mention a 10% risk because the patient would "choose the wrong option". Apply the materiality test, reject the therapeutic exception (it cannot be used to stop an informed choice), and deal with causation by asking what the patient would have done if properly told.
• Key phrases to use: "material risks", "reasonable person in the patient's position", "therapeutic exception", "dialogue", "cannot be reduced to percentages".