Personal Injury, Serious Injury & Clinical Negligence

Doctors now under a duty to disclose all material risks of treatment

Yesterday, the Supreme Court allowed the appeal of Mrs Montgomery in Montgomery v Lanarkshire Health Board [2015] All ER (D) 113 (Mar), concluding that her doctors’ failures to advise her of the risk posed to her baby during birth, and the option of her having a caesarian section, had led to her child being born with cerebral palsy.

Mrs Montgomery is an acute diabetic for which she takes insulin. There is an increased risk of complications during birth in highly diabetic women, including an increased possibility of the baby’s shoulders becoming stuck. As a result, many women are advised to consider delivery by C-section in order to avoid unnecessary complications. Mrs Montgomery was not advised of the risk nor the option available to her for a C-section.

Her baby was delivered naturally, however shoulder dystocia occurred, preventing the umbilical cord from providing oxygen to the baby. Mrs Montgomery’s child now has cerebral palsy, caused by the lack of oxygen during birth.

The case was initially dismissed by the Court as the law at the time, set out in the case ofSidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital ([1985] 1 All ER 643 ), ruled that there was no obligation on doctors to disclose all of the facts of the treatment in order for a patient to be considered to have been properly consented.

Mrs Montgomery appealed; her lawyers seeking to argue that times had changed since theSidaway decision. It was suggested that, nowadays, patients had wider access to information on medical treatment and its complications, through online and other resources. Patients are much better informed and the risks of treatment should not be sugar coated in order not to worry them, as was previously the rationale. It was argued that patients have the right to make their own decisions as to their treatment, provided that they are capable of understanding them, and that they can be responsible for the consequences of those decisions.

The Supreme Court agreed, allowing the appeal. It said that a doctor is under a duty to take reasonable care to ensure that their patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. Essentially, if a doctor ought to be aware that the patient would attach significance to any potential risk, then that risk must be disclosed to the patient for them to make their own informed decision on what option to take.

The only exception to this rule, laid down by the Court, is that a doctor will not be under a duty to discuss the risk if they reasonably consider that its disclosure would be seriously detrimental to the patient’s health. The Court has warned that this exception should not be overused.

Had Mrs Montgomery been made aware of the risk of dystocia, she would have elected for a C-section, and her baby would most likely have been born without complication. The hospital will therefore now be liable for the additional care and support that her baby needs as a result of his cerebral palsy.

Mrs Montgomery’s lawyers were Balfour + Manson, who Chris Thorne, Partner at Clarke Willmott regularly instructs as Scottish agents in his many cases involving the destruction of sperm samples held in Scotland.