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Supreme Court turns away from Bolam to adopt a more patient-based approach

Historically, in cases of medical negligence, the courts have consistently taken the rather simplistic view that, above all, doctors know best. After all, it’s logical that questions of clinical procedure should be considered in line with accepted medical opinion.

However, one must also consider the practical impact of this thinking upon established medical practice. The recent case of Montgomery v Lanarkshire Health Board [2015] has thrown this issue to the forefront regarding informed consent.

Montgomery v Lanarkshire Health Board [2015]

The claimant was Nadine Montgomery (NM), a diabetic woman. As shown via ultrasound scan, she had a large baby in utero. It is accepted medical opinion that diabetes heightens the risk of the baby’s shoulders becoming stuck in the birth canal during birth (shoulder dystocia) by roughly 10 per cent. If shoulder dystocia occurs, aside from presenting a clear danger to the mother’s health, there is also the distinct chance of serious injury to the baby, including cerebral palsy or injury to the brachial plexus.

NM’s obstetrician, Dr McCellan, took the view that if pregnant women with diabetes were warned of the possibility of shoulder dystocia, they would by and large choose a caesarean section birth, as opposed to giving birth conventionally, thus eliminating the risk to mother and baby. Therefore, Dr McCellan chose not to inform NM of the risk on the twin basis of public policy and that she did not deem a caesarean to be in NM’s best interests.

Subsequently, during birth, the baby’s shoulders became stuck in the mother’s pelvis causing the umbilical cord to become trapped and leaving the baby with a lack of oxygen. NM’s baby developed cerebral palsy and a brachial plexus injury.

The Supreme Court decided NM should have been told of the risks of shoulder dystocia and that Dr McCellan was negligent in failing to do so.

Comparing Montgomery and Bolam

The Montgomery case may seem quite uncontroversial on a reading of the facts, but the ramifications for clinical negligence law become clear when considered in conjunction with the previous authority on informed consent; the very well-known case of Bolam.

Bolam acts as authority for the position that:

“a doctor was not guilty of negligence if she had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art”.

The implication of this for Montgomery is that so a long as a responsible body of medical opinion would have acted in accordance with Dr McCellan, there could be no finding of negligence.

The position was applied in the same way when confronted with a case built upon whether certain advice should have been given. Indeed, as Lord Diplock noted, it was the doctor’s role “to decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.”

Again, the implication was that as long as a responsible body of medical opinion would have acted in the same way as Dr McCellan and withheld the advice from NM, there would be no finding of negligence.

One can see therefore that the Bolam principle in informed consent reflects the rather archaic concept of medical paternalism. This concept, that doctor know best, sees patients as simply passive recipients of care, incapable of making choices in their own best interest.

Contrary to this viewpoint however, the court found, quite rightly, in Montgomery that patients, circumstance permitting, should be seen “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.”

A more fluid and patient-based approach

One can now see why it is that the Montgomery case represents such a stark divergence from established legal principle enshrined by Bolam. The Supreme Court in the Montgomery case has adopted the far more modern view that patients are entitled to make decisions, within reason, concerning their own care. In this instance, it was certainly not unreasonable that NM should have been made aware of the risks of dystocia and it follows that a caesarean section request would not have been unreasonable either. Established medical opinion may have supported keeping NM in the dark as to the risks she was being exposed to but, to their credit, the judges of the Supreme Court have taken the decision that there is more to good decision making than established opinion.

Indeed, the specific findings of the Court dictate that clinicians must make patients aware of any “material risks”. The Court found that material risks could be identified:

  • not by reference to whether a group of doctors believe a risk should or should not be discussed; but
  • by whether a reasonable person in the patient’s position would consider the risk significant; or
  • if the doctor knows (or should know) that the patient would consider the risk significant.

It is fair to say that this is a more fluid and patient-based approach. It is a move towards a more modern attitude to patient care and a move away from doctors hiding behind conservative medical opinion.

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Informed Consent In Medical Accidents And Negligence Claims