Modernising the law on informed consent

The recent Supreme Court decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11, 11 March 2015 has seen the courts move away from the previously paternalistic laws on informed consent and take a step towards recognising the more modern relationship between doctor and patient.

Nadine Montgomery was a small diabetic woman (around 5ft tall) who was pregnant with her first child.  During delivery, shoulder dystocia occurred – the baby's shoulders got stuck and there was a consequent 12 minute delay in his delivery while he was freed.  During this time the baby was starved of oxygen and sustained brain injury. He was left with serious disabilities as a result, as well as paralysis of an arm due to the force used in pulling him out.

Mrs Montgomery had not been warned of the risk of shoulder dystocia, which was in the region of 9-10%, with associated health risks to both mother and baby, despite having expressed concern about her ability to deliver the baby (it being well known that diabetes often leads to large babies).  She claimed that, had she been so warned, she should have been offered, and would have asked for, a Caesarian section.

The case lost at first instance but Mrs Montgomery's appeal was unanimously allowed. The Supreme Court held that Mrs Montgomery's doctor should have informed her of the risk and discussed with her the option of a C-section. Interestingly, Mrs Montgomery's doctor openly admitted that she did not routinely discuss the risk of shoulder dystocia with diabetic women for fear that, if told, most women would opt for the C-section.

The Supreme Court found that the the previous test as set down in Sidaway (which extended the Bolam test to questions of risk disclosure and information provision) simply no longer reflected the modern relationship between doctors and patients. They stated that it was a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on information from doctors. Practitioners must therefore take reasonable care to ensure that a patient is aware of any material risks involved in a proposed treatment, and of reasonable alternatives available. 

A risk is "material" if a reasonable person in the patient's position would be likely to attach significance to it, or if the practitioner is or should reasonably be aware that the patient would be likely to attach significance to it. Of course in this case, the treating doctor openly admitted that this would have been the case.

It is therefore no longer the prevailing practice of the medical profession which counts when it comes to informed consent, and the patient is now the central figure in the consent process.  This is obviously a significant development in the field of clinical negligence claims, and potentially makes what was previously a very difficult cause of action a more realistic prospect.  Causation will, however, likely remain key, and we watch with interest how the courts will apply Montgomery in cases where causation is not so clear cut.