Dear Colleagues, 

List members may be interested in the decision of the UKSC this morning in Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 (http://www.bailii.org/uk/cases/UKSC/2015/11.html). Montgomery was a pregnant diabetic of small stature who suffered complications during vaginal delivery; the consultant had failed to warn of the higher risks involved for such a person during vaginal delivery and had she done so the claimant would have opted for a caesarean section. The child was left severely disabled.

In a unanimous decision by 7 Justices (albeit the judgment of Lady Hale is in the form of concurring 'footnote' to the more substantial judgment authored by Lords Kerr and Reed) the Supreme Court has departed from the application of the Bolam test, (and the attendant exceptions outlined by Lord Bridge) to cases involving disclosure of risks in a medical context as the judgment in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 had long ( perhaps somewhat tenuously as some thought) been taken as supporting. As the Supreme Court noted, lower courts in England and Wales (the Scottish courts below having applied Sidaway to dispose of the claim in Montgomery) had in effect been bypassing that reading of Sidaway in recent years in favour of the test set out by Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53. This had itself received tacit endorsement from Lord Walker in Chester v Afshar and has received greater endorsement this morning.  

The Supreme Court held that matters regarding advice can be distinguished from diagnosis and treatment as it is the patient's fundamental right to decide whether to undergo treatment. As such the application of Bolam style reasoning in this area is inappropriate. The Court noted the shift in importance of personal autonomy during the decades after Sidaway. This is identified in changes in GMC guidance itself and the protection given to self-determination in the ECHR and international biomedical jurisprudence. Lord Scarman's judgement in Sidaway generally receives (long overdue…) approval. The point is forcibly made by Lady Hale that in failing to discuss the option of a caesarean section the consultant  seems to have been more influenced by a moral judgment as to which method was to be preferred rather than a medical one. 

In its place the court imposes a duty to disclose material risks, with material being defined as those risks to which a reasonable person in the position of the patient would attach significance. Significance is clearly said to be broader than the magnitude of the risk and practitioners will have to consider the impact any risk would have on the life of the patient. In addition they happily adopt the formula of High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479 that a risk may also be material where the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it The duty to disclose also naturally encompasses disclosure of alternatives. 

Montgomery is itself an excellent example of the fact that how one slices the risks up will determine whether it is significant. The Lord Ordinary and the Inner House of the Court of Session had regarded the risk as the very small (0.1-0.2%) risk of the actual outcome occurring (there injury to the brachial plexus and entanglement in the umbilical cord). The Supreme Court corrected this view to focus on the much broader risk (c.10%) of shoulder dystocia which precipitated the eventual outcome. 

As to the overall impact of this decision, the Court noted  that predictability can be sacrificed at the altar of the patient's rights and indeed that a clear shift from a model of litigation based on a medical practitioner controlling access to information to one based on partnership and treating patients as capable of understanding medical risks, i.e. choosing for themselves, and living with the consequences may take the motivational sting out of potential litigants. They clearly acknowledged the fact-specific nature of any resulting litigation. Whether this is the case remains to be seen but this is undoubtedly an important decision for medical liability. 

Best wishes, 

Colm