Montgomery And Beyond – Clyde & Co Win First Case Following This Landmark Decision

The Supreme Court handed down a unanimous decision in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 on 11 March 2015.

The case concerned an alleged failure to advise a diabetic mother of the risks of encountering shoulder dystocia during labour, and to offer caesarean section to avoid injury to the child and/or mother. It was accepted that the risk of shoulder dystocia in the mother's case was in the region of 9%. The Supreme Court concluded that the correct legal test to apply was not what a reasonable obstetrician would have advised a patient in these circumstances, based on the principles laid down in Bolam v Friern Hospital [1957] 1 WLR 582, but instead the correct test was one of patient autonomy. Please click here to read our previous article on Montgomery.

Based on the above, it has been suggested by many advisors, both for the Claimant and Defendants, that patients must be informed of all risks in respect of any treatment option in order to provide informed consent. Some have even gone so far as to suggest that the consenting process should always be video recorded. In our view, this is clearly not practical and indeed this is not our interpretation of the judgment given that the Court specifically states that: "The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient's health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision." In addition, the Court specifically states that the duty is to inform of any material risk.

The question therefore is what a material risk is and more importantly how do you determine what is material to a specific patient?

In the case of A v East Kent Hospitals University NHS Foundation Trust [2015] EWCH 1038 (QB), Mr Justice Dingemans set out his interpretation of material risk as defined by the Supreme Court. The case is a wrongful birth claim where A sought damages for the costs associated with raising a disabled child.

A had attempted to conceive naturally which had resulted in one pregnancy, which unfortunately spontaneously miscarried at eight weeks. A and her partner paid privately for a DNA fragmentation and sperm aneuploidy test. The results showed that the DNA test had been carried out on chromosomes...