MARCH 13, 2015 BY DAVID HART QC

Supreme Court reverses informed

consent ruling: Sidaway is dead

Montgomery v. Lanarkshire Health

Board [2015] UKSC 11, 11 March 2015 read judgments here
James Badenoch QC of 1COR was for the mother in this case. He played no part in
the writing of this post.
An important new decision from a 7-Justice Supreme Court on informed
consent in medical cases.
In the mid-1980s a majority of the House of Lords in Sidaway decided that
it was on the whole a matter for doctors to decide how much to tell
patients about the risks of treatment, and that therefore you could not sue
your doctor in negligence for failing to inform you of a risk if other
reasonable doctors would not have informed you of the risk. Thus the
principle that the standard of medical care is to be determined by medical
evidence (which all lawyers will know as the Bolam principle) was extended
to the quality of information to be provided to a patient about a
given treatment.
The Supreme Court, reversing the judgments at first instance and on appeal, has
now unequivocally said that Sidaway should not be followed.
The facts
In 1999, Mrs Montgomery gave birth to a baby boy. Unfortunately, he was starved of
oxygen during the delivery and sustained severe brain damage. The principal claim
was against her obstetrician for failing to give proper warnings. This was because the
mother was small and diabetic, and diabetes tends to lead to larger babies. In the

event, the shoulders of the baby got stuck during delivery (known as shoulder
dystocia) and there was a 12 minute delay in freeing the shoulders during which her
son sustained the brain injury. He also sustained paralysis of an arm caused by the
force used in pulling him out.
The mother said she should have been warned of the risks of shoulder dystocia, and
her evidence was that, had she been so warned, she should have been offered and
would have asked for a caesarean section.
The Sidaway point
The obstetrician said she did not warn about shoulder dystocia because the risks of a
serious problem ensuing from it were very small, and in this she was supported by
some of the experts who gave evidence at trial.
But was this the right approach, namely for the decision about the information to be
provided was to be left ultimately to the doctors clinical judgment?
The majority decision in Sidaway supported this, though, as the current Supreme
Court explained, the reasoning of the House of Lords was rather more nuanced than
has been often stated.
The Scottish courts decided that Sidaway was determinative of the question.
The Supreme Court, after an exhaustive review of the post-Sidaway cases,
disagreed. In particular, the Court noted that the English courts (in cases such
as Pearce and Chester v. Afshar) had eroded the supposed certainties
of Sidaway and have tacitly ceased to followSidaways adoption of the Bolam test in
this context. Australian and Canadian courts had taken the same view.
The justification for this change of approach will be obvious. A patient has her own
right to make her own decision based upon sufficient information. A doctor must
respect that right if there were material risks which a reasonably prudent patient
would think were significant. Medical evidence would of course be relevant to that
decision, but the decision was ultimately legal rather than one for the doctors. As
the main judgment puts it at [75]
.patients are now widely regarded as persons holding rights, rather than
as the passive recipients of the care of the medical profession.
Times have moved on from the doctor knows best approach of Sidaway. There are
so many other sources of information available to patients (the internet, patient
support groups, drug labelling etc) and hence
It would therefore be a mistake to view patients as uninformed, incapable
of understanding medical matters, or wholly dependent upon a flow of
information from doctors. The idea that patients were medically
uninformed and incapable of understanding medical matters was always a
questionable generalisation.. To make it the default assumption on which
the law is to be based is now manifestly untenable.
This default assumption does not accord with GMC guidance to doctors, nor indeed
with other developments in the law:
80. Under the stimulus of the Human Rights Act 1998, the courts have
become increasingly conscious of the extent to which the common law
reflects fundamental values. As Lord Scarman pointed out
in Sidaways case, these include the value of self-determination.. As well

as underlying aspects of the common law, that value also underlies the
right to respect for private life protected by article 8 of the European
Convention on Human Rights.
The Court noted that the resulting duty to involve a patient in treatment decisions
has been recognised in Strasbourg cases such as Glass v United Kingdom (2004) 39
EHRR 15 and Tysiac v Poland(2007) 45 EHRR 42, as well as in a number of decisions
of UK courts.
So the move is away from a model of medical paternalism. Social and legal
developments point towards an approach to the law
which, instead of treating patients as placing themselves in the hands of
their doctors (and then being prone to sue their doctors in the event of a
disappointing outcome), treats them so far as possible as adults who are
capable of understanding that medical treatment is uncertain of success
and may involve risks, accepting responsibility for the taking of risks
affecting their own lives, and living with the consequences of their choices.
This rule comes with an important caveat, known as the therapeutic exception.
A doctor is entitled to withhold from the patient information as to a risk if
she reasonably considers that its disclosure would be seriously detrimental to the
patients health. But the Court stressed the limited nature of this exception. It should
not be use to subvert the principle in circumstances where the doctor thinks that the
patient is liable to make a choice which the doctor believes in contrary to her best
interests.
The Court went on to decide that the obstetrician should have warned the mother
about the risks of shoulder dystocia and discussed the alternative of an elective
caesarean section.
Causation on the facts
A claimant still has to show that she would have made a different decision, had she
been properly informed. Here, the first instance judge had concluded that, with full
advice about shoulder dystocia, the mother would not have opted for an elective
caesarean.
It is usually extremely difficult for an appellate court to reverse that sort of decision
on the facts. However, the judges conclusions contained two errors, according to the
Supreme Court. It focussed on the very small risk of grave consequences from
shoulder dystocia, rather than the considerably greater risks of shoulder dystocia
itself (9% to 10%). It also omitted one important bit of evidence from the obstetrician
herself, who, when explaining why she did not warn about shoulder dystocia, said
that most women would actually say, Id rather have a caesarean section'.
The obstetrician added
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 its not in the maternal interests for women to have caesarean
sections.
So the obstetrician herself accepted that mothers would generally opt for a
caesarean if so warned; that was a reason for not warning.

The Supreme Court noted that the judge had concluded that the obstetrician was an
impressive witness. To find that she was wrong in her evidence on this point does
strike one as a little inconsistent.
Hence, taking the mothers evidence with the obstetricians evidence, the Court
concluded that it is probable that the mother would have chosen caesarean section
had it been offered to her with a proper explanation of the risks of shoulder dystocia.
Lady Hale, in her concurring judgment, pointed out that the obstetricians view did
not appear to be a purely medical judgment.
It looks like a judgment that vaginal delivery is in some way morally
preferable to a caesarean section: so much so that it justifies depriving the
pregnant woman of the information needed for her to make a free choice in
the matter. Giving birth vaginally is indeed a unique and wonderful
experience, but it has not been suggested that it inevitably leads to a
closer and better relationship between mother and child than does a
caesarean section.
The first is indeed a telling point. As for the second, the only HRB editor with direct
experience of childbirth would herself not go quite as far as describing vaginal
delivery as a unique andwonderful experience.
Conclusion
The Supreme Court has now cleared up the inevitable arguments which occurred
from time to time in UK courts as to how Sidaway could be reconciled with the later
cases, and has brought Scots law into harmony with the recent English cases. The
present judgments show a rather more modern and enlightened approach to the
doctor-patient relationship than that adopted 30 years ago in the House of Lords.
And so for the two people shown in my pic above, a successful claim in damages.
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