MLACP Winter Conference and AGM 2015 LEGAL UPDATE

Case Law – Informed Consent Montgomery v Lanarkshire Health Board [2015] UKSC 11 Jones v Royal Wolverhampton Hospitals NHS Trust [2015] EWHC 2154 (QB)

Overview The Claimant, Nadine Montgomery (“C”) gave birth to a baby boy on 1 October A complication of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) developed during labour and the baby was born with severe disabilities. C brings a case for damages on behalf of her son for the injuries which he sustained. Allegations against the Obstetrician (“D”) for breach of duty of care during the antenatal period and during labour.

The Facts: C had a high risk pregnancy as she was a diabetic – she required intensive monitoring. Increased risk of a larger baby, with a particular concentration of weight on the babies shoulders. Risk of shoulder dystocia in diabetic mother’s of 9-10%. C was not advised of the risk, but she did express concerns about the size of her baby. During labour the baby’s shoulder became impacted at a point when half of the head was outside the perineum.

Facts continued… Baby’s head was freed after 12 minutes and the baby delivered. Deprivation of oxygen – baby diagnosed with cerebral palsy and also suffered a brachial plexus injury resulting in an Erb’s palsy (paralysis of the arm).

Allegations of negligence: Failed to advise C of the risk of shoulder dystocia and the option to have an elective caesarean. Failed to perform a caesarean in response to an abnormal CTG during labour.

First Instance Decision Whether a doctors failure to advise a patient of the risks of treatment was a breach of duty by asking: “whether the omission was accepted as proper by a responsible body of medical opinion” – Bolam. and if so was the opinion incapable of standing up to rational analysis – Bolitho ( this test was not met). Found that the relevant risk was not the possibility of shoulder dystocia developing, but the much smaller risk of a grave adverse outcome. Accepted that C did not asked “specifically about exact risks”. C was unsuccessful and appealed.

Decision “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. Exceptions: Doctor can withhold disclosure if where disclosure would be seriously detrimental to the patient’s health, or for necessity (emergency treatment).

3 points to consider: Assessment of whether a risk is material : - the significance of a given risk should not just be about magnitude, for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available and the risks involved in those alternatives.

3 points to consider: The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that the patient is in a position to make an informed decision. Not bombarding the patient with technical information, or routinely demanding that they sign a consent form.

3 points to consider: The therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment. It is not intended to subvert that principle by enabling the doctor to prevent the patient form making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.

In summary A departure from Bolam – fact specific for a particular case. Materiality of risk. A move towards the importance of patient autonomy and choice and a respect of the dignity of patients Retrospective – yes