BRIEFING A reasonable patient
A case argued before the Supreme Court in London has clarified the legal position of informed consent. Here medical adviser Dr Gail Gilmartin looks at the judgment
birth-related injuries and has attracted a lot of publicity because of the £5.25 million award. But the case is also highly significant in medico-legal terms in that it crystallises the law in relation to consent – more specifically issues around the amount of information a patient is entitled to be told before making a treatment decision. Te case arose in 1999 when Nadine Montgomery gave birth to
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her son, Sam, at the Bellshill Maternity Hospital in Lanarkshire. Staff had to resort to a forceps delivery aided by symphysiotomy aſter the baby’s head failed to descend due to shoulder dystocia. Twelve minutes passed between the head appearing and delivery, during which time the cord was completely or partially occluded. Sam was diagnosed with significant cerebral palsy. Later Mrs Montgomery – acting on behalf of her son – raised an
action against the health board alleging negligence in that she should have been given advice regarding the risk of shoulder dystocia, being just over five feet tall and diabetic. She also alleged that it was negligent not to perform a caesarean section when abnormalities were noted on the cardiotocograph (CTG) traces. Te main focus of the appeal was in regard to the information
given to Mrs Montgomery when she had expressed concern about being able to deliver her baby vaginally – though she had not asked specific questions regarding shoulder dystocia. Maternal diabetes is known to increase the risk of complications such as shoulder dystocia – which occurs in around 10 per cent of babies born to diabetic mothers. In around 70 per cent of cases it can be overcome by simple manoeuvres but a small proportion (much less than 1 per cent) result in permanent injury. Te consultant involved in the case did not advise Mrs
Montgomery of the risk of shoulder dystocia as in her view – supported by obstetric opinion – this was not warranted given the low probability of permanent harm. Mrs Montgomery argued that had she been fully advised of the risks, she would have elected for a caesarean section. Initially Mrs Montgomery lost her case before the Outer House
of the Court of Session in Edinburgh and then again on appeal before the Inner House. She then took her case to the Supreme Court in London where she was successful and her appeal allowed.
Material risk Tis case is important to all doctors and dentists involved in consent discussions with patients as it sets out very clearly what
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HE Supreme Court recently published its judgment on a landmark medico-legal case in Scotland. Montgomery v Lanarkshire Health Board involved allegations in relation to
is expected in terms of information disclosure: the focus being on matters the patient would regard as significant which may not be the same in the clinician’s opinion. Te key statements in the judgment pull together previous case
law and guidance from, amongst others, the GMC. Tere is a move away from non-disclosure of a risk based on percentages: “... it follows … that the assessment of whether a risk is material cannot be reduced to percentages”. Te judgment also states that it cannot be leſt to the doctor to
determine what is reasonable to disclose; the move is to what a patient would attach importance to. In addition, the Courts have the final say in “determining the nature and extent of a person’s rights….not the medical profession’s”. At paragraph 87 the judgment states: “An adult person of sound mind is entitled to decide which, if any, of the available forms of
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