Montgomery v Lanarkshire Health Board

Facts

Nadine Montgomery, a diabetic woman of small stature, was expecting a larger than usual baby. Diabetic mothers face an increased risk of shoulder dystocia in a vaginal delivery, estimated by her obstetrician at about nine to ten per cent. The obstetrician did not tell her of this risk or offer an elective caesarean section, because she regarded the risk of serious harm as small and thought that if told, many women would choose a caesarean. During labour shoulder dystocia occurred, and her son Sam was born with severe disabilities including cerebral palsy as a result of oxygen deprivation. It was found that if she had been told of the risk she would have asked for a caesarean.

History

Her claim was dismissed in the Outer House of the Court of Session, and her appeal to the Inner House was refused. She appealed to the Supreme Court.

Issue

Whether a doctor's duty to advise a patient about the risks of treatment and of alternatives is measured by what a responsible body of medical opinion would disclose, or by what the patient would want to know; and whether the doctor could withhold information in reliance on the therapeutic exception.

Held

Appeal allowed. The obstetrician had failed in her duty to disclose a material risk and the reasonable alternative of a caesarean, and since the mother would have chosen a caesarean, the failure was causative.

Ratio

• A doctor must take reasonable care to ensure that the patient is aware of any material risks involved in a recommended treatment and of any reasonable alternative or variant treatments.
• A risk is material if, in the circumstances, a reasonable person in the patient's position would be likely to attach significance to it, or the doctor is or should reasonably be aware that this patient would be likely to attach significance to it; the question is for the court and not decided by medical opinion under the Bolam test.
• The therapeutic exception, which allows a doctor to withhold information where disclosure would be seriously detrimental to the patient's health, is a limited exception and does not permit the doctor to withhold information because she fears that the patient will make a choice the doctor disagrees with.

The judgments

Key reasoning

• Patients are now regarded as adults capable of understanding that medical treatment involves risks and of making choices about their own care, not as passive recipients of treatment, and the doctor's role is to give the information needed for the patient to take that decision.
• Whether a risk is material depends on factors such as its nature and magnitude, the effect on the patient's life, the importance to the patient of the benefit sought, and the alternatives, which are not matters of medical expertise and so are not suited to resolution by the Bolam test.
• The approach was consistent with the law developed in Canada in Reibl v Hughes (1980) 114 DLR (3d) 1 and in Australia in Rogers v Whitaker (1992) 175 CLR 479, and with professional guidance requiring doctors to discuss options and risks with patients.

Where it fits in the module

On the FHS Tort list under the Social Action, Responsibility and Heroism Act 2015, which is relevant to the standard of care generally. Montgomery shows that the professional practice standard in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health Authority [1998] AC 232 does not govern every aspect of medical negligence: for disclosure the court applies a standard set by the patient's interests. The 2015 Act's directions about social value, responsible conduct and heroism do not alter that analysis. Candidates can use the case for the debate about the role of professional custom in setting the standard of care, patient autonomy, and the distinction between treatment and advice.

Criticisms

• The test of materiality is indeterminate, combining what a reasonable patient would find significant with what this patient would, so doctors must guess what to disclose and may respond with defensive and lengthy consent procedures.
• Causation remains governed by the but-for test, requiring the patient to show she would have chosen differently, which in many cases rests on retrospective and self-interested evidence.
• The decision preserves the Bolam standard for diagnosis and treatment while applying a patient-based test to disclosure, creating a hybrid which is hard to apply where advice and treatment overlap.
• The scope of the therapeutic exception is left uncertain, and the assumption that patients make informed rational choices in a clinical setting may overlook the limits of what they can absorb.