In Montgomery the Supreme Court decided that before consenting to treatment a patient is entitled to be aware of any material risks and of alternative or variant treatments.
To those who do not specialise in clinical negligence this may not sound earth-shattering: Surely adult patients of sound mind ought to be told of the risks involved? But in saying so the Supreme Court have overturned 30 years of law stemming from the majority decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital  AC 871. Sidaway held that the question of whether it was a breach of duty not to tell a patient of risks was to be primarily decided on the Bolam test i.e. there was no breach if a responsible body of medical opinion, even a small one, would have done the same. In Montgomery the treating gynaecologist/obstetrician did not tell an expecting mother, who was diabetic, of a 9-10% risk of shoulder dystocia (which can and did cause a severe injury to her baby) associated with diabetes if she had ordinary vaginal delivery, or to advise her of caesarean section as an alternative that would avoid this risk.
The treating doctor explained to the trial judge that this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, “most women will actually say, ‘I’d rather have a caesarean section’”. She went on to say that “if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections”. She had expert evidence in support that satisfied the Bolam/Bolitho tests so the Defendant succeeded at trial and on the first appeal. The Supreme Court however allowed the appeal. For good or ill, this is another dent in the concept of “doctor knows best”.
Napier Miles / 3rd Nov 2015
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