This issue was decided by the UK Supreme Court in the case of Montgomery v Lanarkshire Health Board  UKSC 11 issued on Wednesday 11 March 2015.The Plaintiff Nadine Montgomery gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during the delivery, the baby was born with severe disabilities. The Plaintiff sought damages on behalf of her son for the injuries which he sustained. She attributed those injuries to negligence on the part of Dr Dina McLellan, a consultant obstetrician and gynaecologist employed by Lanarkshire Health Board, who was responsible for Mrs Montgomery’s care during her pregnancy and labour. She also delivered the baby.
One of the grounds of negligence advanced by the Plaintiff concerned her ante-natal care. It was contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section.
The mother had Diabetes and was of small stature
The Plaintiff was of small stature, being just over five feet in height. She suffered from insulin dependent diabetes mellitus. Women suffering from diabetes are likely to have babies that are larger than normal, and there can be a particular concentration of weight on the babies’ shoulders. Because of her diabetes, the Plaintiff`s was regarded as a high risk pregnancy requiring intensive monitoring.
The widest part of a baby’s body is usually the head. If the head successfully descends through the birth canal, in a normal birth the rest of the body will descend uneventfully. Since the widest part of the body of a baby whose mother is diabetic may be the shoulders the head may descend but the shoulders can be too wide to pass through the mother’s pelvis without medical intervention. This phenomenon, known as shoulder dystocia, is the prime concern in diabetic pregnancies which proceed to labour.
Complications of Shoulder Dystocia
When shoulder dystocia happens it can be an unpleasant and frightening experience for the mother. It also gives rise to a variety of risks to her health. Shoulder dystocia also presents risks to the baby. The physical manoeuvres and manipulations required to free the baby can cause it to suffer a broken shoulder or an avulsion of the brachial plexus – the nerve roots which connect the baby’s arm to the spinal cord. An injury of the latter type may be transient or it may, as in this case, result in permanent disability, leaving the child with a useless arm. The risk of a brachial plexus injury, in cases of shoulder dystocia involving diabetic mothers, is about 0.2%. In a very small percentage of cases of shoulder dystocia, the umbilical cord becomes trapped against the mother’s pelvis. If, in consequence, the cord becomes occluded, this can cause the baby to suffer from prolonged hypoxia, resulting in cerebral palsy or death. The risk of this happening is less than 0.1%.
What information was given to the mother?
The Plaintiff was merely told that she was having a larger than usual baby. She was not however told about the risks of her experiencing mechanical problems during labour. In particular she was not told about the risk of shoulder dystocia. It was agreed that that risk was 9-10% in the case of diabetic mothers. Dr McLellan accepted that this was a high risk but, despite the risk, she said that her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia. She explained that this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, “most women will actually say, ‘I’d rather have a caesarean section’”. She went on to say that “if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections”.
Complications resulted in Cerebral Palsy and Erbs Palsy
Complications arose during the birth. During the 12 minutes between the baby’s head appearing and the delivery, the umbilical cord was completely or partially occluded, depriving him of oxygen. After his birth, he was diagnosed as suffering from cerebral palsy of a dyskinetic type, which had been caused by the deprivation of oxygen. He also suffered a brachial plexus injury resulting in Erb’s palsy (ie paralysis of the arm). All four of his limbs were affected by the cerebral palsy. If the Plaintiff had had an elective caesarean section her son would have been born uninjured.
The Supreme Court Decision
The issue before the Supreme Court was whether the consultant obstetrician and gynaecologist was negligent in the management of the Plaintiff`s pregnancy and labour and, if so, whether this was causative of the child’s brain injury.
While her Claim was unsuccessful before the Outer House of the Scottish Court of Session the Plaintiff had appealed to the Supreme Court. The Supreme Court, allowing the appeal, held that it would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on information from doctors. This was reflected in the guidance issued by the General Medical Council. Courts were also increasingly conscious of fundamental values such as self-determination.
Lords Kerr and Reed, in the lead judgment, reasoned that an adult of sound mind was entitled to decide which of the available treatments to undergo, and consent must be obtained before treatment interfering with bodily integrity is undertaken. The doctor was under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in proposed treatment, and of reasonable alternatives. A risk was “material” if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor was or should reasonably be aware that their patient would be likely to attach significance to it.
Three further points emerged: (i) assessing the significance of a risk was fact-sensitive and cannot be reduced to percentages (ii) in order to advise, the doctor must engage in dialogue with the patient.(iii) the therapeutic exception (enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests ) is limited, and should not be abused.
Implications of the Decision
In cases of informed consent, there is no longer a defence that a medical practitioner failed to explain a minimal risk, even those risks with a grave consequence, on the basis that a reasonable body of opinion would support that omission. The law now requires explanation of all material risks.
For further information on Informed Consent / Erbs Palsy / Medical Negligence contact Morgan McManus solicitors brilliantreddev.co.uk/morganmcmanus