Montgomery v Lanarkshire Health Board [2015] UKSC 11

Mrs Montgomery, a diabetic woman of small stature, was not warned by her obstetrician about the 9-10% risk of shoulder dystocia during vaginal delivery. Her son suffered severe disabilities during birth. The Supreme Court held doctors must inform patients of material risks, departing from the Bolam test for disclosure of treatment risks.

Facts

Mrs Nadine Montgomery was expecting her first child in 1999. She was of small stature and suffered from insulin-dependent diabetes mellitus, which typically results in larger babies. Her consultant obstetrician, Dr Dina McLellan, was aware that there was a 9-10% risk of shoulder dystocia (where the baby’s shoulders become stuck during vaginal delivery) in diabetic mothers. Mrs Montgomery expressed concerns about her ability to deliver vaginally due to the size of her baby.

Dr McLellan did not inform Mrs Montgomery about the risk of shoulder dystocia, as it was her practice not to discuss this risk because she believed patients would then request caesarean sections, which she considered not in maternal interests. During delivery, shoulder dystocia occurred, and the baby suffered severe injuries including cerebral palsy and Erb’s palsy due to oxygen deprivation.

Issues

Primary Issue

Whether Dr McLellan was negligent in failing to advise Mrs Montgomery of the risk of shoulder dystocia and the alternative of delivery by caesarean section.

Secondary Issue

Whether, if such a duty existed, Mrs Montgomery would have elected to have a caesarean section had she been properly advised.

Judgment

The Supreme Court unanimously allowed the appeal, departing from the approach in Sidaway v Board of Governors of the Bethlem Royal Hospital.

Lords Kerr and Reed (with whom the other Justices agreed) held that the Bolam test should no longer apply to questions of disclosure of risks to patients. They stated:

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

The test of materiality was defined as:

whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

The Court found that Dr McLellan should have advised Mrs Montgomery of the risk of shoulder dystocia and discussed the alternative of caesarean section. On causation, the Court held that, properly directed, the evidence clearly showed Mrs Montgomery would have elected a caesarean section if properly advised, particularly given Dr McLellan’s own evidence that Mrs Montgomery would undoubtedly have requested one.

Implications

This judgment fundamentally changed the law on informed consent in medical treatment. The key principles established are:

• The Bolam test no longer applies to disclosure of risks; doctors cannot rely solely on accepted medical practice to determine what information to provide
• Patients are entitled to make autonomous decisions about their treatment based on material information
• Materiality is assessed from the patient’s perspective, not the doctor’s
• The therapeutic exception (withholding information harmful to health) cannot be used to prevent patients making informed choices
• Doctors must discuss reasonable alternative treatments, not just the recommended option

Lady Hale emphasised the particular importance of patient autonomy in pregnancy, noting that pregnant women are entitled to evidence-based information to make informed decisions about their care.

Verdict: Appeal allowed. Dr McLellan was found negligent in failing to advise Mrs Montgomery of the risk of shoulder dystocia and the alternative of delivery by caesarean section. Causation was established as Mrs Montgomery would have elected a caesarean section if properly advised.

Source: Montgomery v Lanarkshire Health Board [2015] UKSC 11