Consent – Changing priorities

In this article (kindly reproduced here in full from publication in the Personal Injury Law Journal) Paul Sankey investigates a decision in the Court of Appeal after it had applied the Montgomery test

The recent decision in Webster v Burton Hospitals NHS Foundation Trust [2017] is significant as the first Court of Appeal judgment applying the new law in relation to a doctor’s duty to advise, as set out by the Supreme Court in Montgomery v Lanarkshire Health Board [2015]. The facts Ms Butler’s first pregnancy appeared normal until 18 November 2002 when an ultrasound scan suggested three factors of concern: the foetus was small for gestational age (SGA); the circumference of the abdomen was proportionately much smaller than that of the head; and there was polyhydramnios (excess liquid). Her obstetrician failed to take these abnormal features into account in managing the delivery. He planned review at 41 weeks with a view to induction.

On 26 December 2002 she felt unwell and was admitted. On 27 December 2002, which was her due date, she felt better but on her evidence wanted to stay in hospital and expected to be induced. She was discharged.

Her son, Sebastian Webster, was born on 7 January 2003. As a result of cord compression during the period between 48 and 72 hours before delivery he suffered an injury to his brain which left him with cerebral palsy. He is profoundly cognitively and physically impaired. Delivery before 16:09 on 4 January 2003 would have avoided the injury. She brought a claim on her son’s behalf alleging that her obstetrician had negligently failed to take the abnormalities into account and to arrange fortnightly ultrasound scanning. This was admitted. However there was a dispute as to whether the results would have been reassuring or not. She also alleged that a decision should have been made to induce her on her due date of 27 December 2002. At a late stage she alleged that she should have been advised of the risk of antenatal foetal death associated with the abnormalities and that, given such advice, she would have elected for induction.

Trial

She brought the claim in the High Court. The principal issues at trial were what would have happened had further scans been done and how her management would have changed. His Honour Judge Inglis gave judgment in favour of the defendant on 28 November 2014 rejecting her claim. He found that the obstetrician was not aware of the implications of the abnormalities but should have informed himself. He would have discovered emerging and incomplete research evidence of increased risks of foetal death before delivery. However there was a responsible body of obstetricians who would not have been deflected from their normal course of management and so the decision to continue with the pregnancy was not negligent. Further, given that the obstetrician was not taking an unusual course, there was no need to discuss the additional risks with Ms Butler. He nevertheless found that she would have wanted induction had she been advised of the risks.

Supreme Court decision in Montgomery

Just over three months later, on 11 March 2015, the Supreme Court gave its decision in Montgomery v Lanarkshire Health Board . That decision redefined a doctor’s duty in advising and obtaining consent to treatment. The Supreme Court decided that a doctor is under a duty to take reasonable care to ensure that a patient is aware of any material risks both of a recommended treatment but also of any reasonable alternative treatments.
Whether a risk is material depends on the individual patient. It is not just a matter of degree. It will reflect the nature of risk, its impact on the patient’s life and the patient’s assessment of the benefits and risks of different treatments. A risk is material where:
… in the circumstances of a 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 patient would be likely to attach significance to it.
A doctor’s role in advising is not solely an exercise of medical skill to be assessed by reference to standards set by the medical profession. The Bolam test (that of the reasonable medical specialist) does not therefore apply to the duty to advise. A patient is entitled to decide on what risks to run. That decision may be influenced by non-medical factors. A different approach to defining the doctor’s duty is required.

Court of Appeal decision in Webster

Following the decision in Montgomery , the claimant in Webster appealed on the grounds that his mother should have been properly advised of the risk of delaying labour – in line with the Montgomery duty – and, had she known the risk, would (as the trial judge found) have elected for induction.
The Court of Appeal held that had the judge followed the Montgomery approach rather than Bolam he have reached a different conclusion. The obstetrician should have advised that there was emerging but recent and incomplete material showing increased risks of delaying labour. Given that advice Ms Butler would have wanted to be delivered on 27 December 2002, even if she had been given contrary arguments in favour of non-intervention. That conclusion was supported by her own clear evidence, her background (a university degree in nursing) and her willingness to take responsibility for her pregnancy as demonstrated by an earlier event when she had discharged herself from hospital.

Comments

There have been a number of reported decisions from the lower courts since Montgomery but this is the first Court of Appeal decision to apply the new definition of a doctor’s duty in giving advice. It demonstrates the significant shift from a clinician-centred approach to Montgomery ’s patient-centred approach to advice. Under Bolam the standard is set by the medical profession. It is the standard of the responsible doctor (practicing a particular discipline). Under Montgomery the standard is that of a reasonable person in the patient’s position. It reflects a culture which rejects medical paternalism and respects patient autonomy.

The decision in Webster has a number of implications. As the first Court of Appeal decision since Montgomery it demonstrates clearly the difference between two different standards applied to a doctor’s duty in advising. Under the Bolam test of the reasonable obstetrician the claim had failed. Under the Montgomery test of the reasonable patient the claim succeeded. The impact of Montgomery on this case is stark. It reinforces the direction of travel in consent cases in favour of the patient. Of the reported cases since Montgomery , the new duty probably only made a difference in SXX v Liverpool Women’s NHS Foundation Trust [2015] and Jones v Royal Devon & Exeter NHS Foundation Trust [2015]. In the former, the mother of twins would have wanted caesarean section not because of any particular risk in her pregnancy but because of the experience of the still-birth of a twin within the wider family. In the latter, a County Court case, a patient would not have consented to spinal surgery had she been told earlier of a change to a less experienced surgeon. On the other hand, Tasmin v Barts Health NHS Trust [2015] suggested a more cautious application of Montgomery , in particular with a finding that a risk of 0.1% was too low to be material.

The decision emphasises that it is not for the medical profession to define the circumstances in which a patient should be warned of a risk. In assessing what advice should have been given, the Court of Appeal went beyond the evidence of both the experts. Mr Tuffnell, for the defendant, would not have attached significance to the association and would not have warned of the risk. Professor Soothill, for the claimant, thought a discussion was required because, given the risks, the obstetrician was taking an unusual course in allowing the pregnancy to continue. The implication of his view was that a patient is only entitled to advice where the clinician is not following the normal procedure. The Court of Appeal did not accept either approach. It based its view that the mother should have been warned of the risk not because her management was unusual but that there was evidence of a risk of which she was entitled to know.

The trial judge in Webster had been more ready to find that the mother would have made a different decision with proper advice than the trial judge in Montgomery . In Montgomery the obstetrician had given evidence that most women in the mother’s position would have elected for caesarean section if fully advised. The Lord Ordinary in the Court of Sessions nevertheless oddly found that Ms Montgomery would not. On the other hand the trial judge in Webster had accepted that Ms Butler would have elected for induction if correctly advised. He gave reasons to support that view in addition to her ‘clear evidence’. They included the fact that she had taken responsibility for her pregnancy at an earlier stage, discharging herself against medical advice on 31 October 2002. One of the difficulties of claims based on consent is the difficulty of claimants avoiding hindsight bias – failing to exclude hindsight in considering the decision they would have made with fuller information. Cases are more likely to succeed where there is good evidence to displace the suggestion of hindsight bias.
The case is also unusual because of the rarity of the abnormalities. The trial judge found that the obstetrician did not know their implications.

The defendant’s expert, Mr Tuffnell, attached no significance to the abnormalities in his first report. There was only very limited research evidence establishing an association. Yet the trial judge found that the obstetrician should have informed himself, which may seem quite an onerous obligation. This will have implications for other cases. With rare conditions there will often be a limited evidence base. If the risk is material – even if the evidence for that risk is limited – patients still have the right to know.
Webster therefore represents an important application of the Montgomery principles. It is the first comment by the Court of Appeal on the issue. It reinforces the direction of travel in prioritising patient autonomy. It resulted in success for the claimant where evidence for the risk was less clear and based on less evidence than Montgomery .

The issue of consent remains one of importance to patients and doctors alike. The impact of the decision in Montgomery is gradually becoming clearer as more decisions are reported. However the medical profession is still working out its implications. Some medical bodies, such as The Royal College of Surgeons and the Intensive Care Society, have re-written their guidelines. Many clinicians have changed their practice. Others express anxieties as to how they know whether they are complying with their duties. In the meantime clarification from the courts on what the duty means in practice is welcome.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Jones v Royal Devon & Exeter Hospital NHS Foundation Trust [2015] Lawtel, 22 September

Montgomery v Lanarkshire Health Board [2015] UKSC 11

SXX v Liverpool Women’s NHS Foundation Trust [2015] EWHC 4072

Tasmin v Barts Health NHS Trust [2015] EWHC 3135

Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62