Informed consent: application of Montgomery and confirmation of the need for doctors to adopt a patient centred approach

Webster (A Child & Protected Party, By His Mother & Litigation Friend, Heather Butler) v Burton Hospitals NHS Foundation Trust (2017)

The United Kingdom’s Court of Appeal overturns High Court’s decision where the judge had erred in his approach regarding the nature of a doctor’s duty to advise the patient. The application of the Bolam test when determining the level of information to give to a patient was no longer appropriate. Applying Montgomery v Lanarkshire Health Board [11.03.15] the treating obstetrician should have advised the patient of the option of early induction and the increased risks associated with prolonging the pregnancy.

Implications

The decision reinforces that when taking patients’ informed consent, doctors need to adopt a patient-centred approach. Doctors must ensure they take reasonable care to ensure that a patient is aware of all material risks that the patient may reasonably attach significance to in any recommended treatment and/or any reasonable alternative treatments.
 
Further, the decision demonstrates how Montgomery has overturned the previous application of the Bolam test when determining allegations of negligent failures in taking informed consent. This is likely to have a significant bearing on cases with appeals pending involving such issues.

Background

The appellant was Ms Butler’s first child. During her pregnancy an ultrasound scan of the foetus on 18.11.02 revealed the appellant was small for gestational age (SGA), had asymmetry between the abdominal and head circumferences and there was polyhydramnios (excess amniotic fluid). Ms Butler’s treating obstetrician considered these findings immaterial to managing her pregnancy. The Respondent hospital admitted that the obstetrician was in breach of duty in failing to arrange further ultrasound imaging (every two weeks) in view of the size of the foetus.

Ms Butler was admitted on the night of 26.12.02, the day before the initial expected due date (at 38 weeks). Ms Butler was feeling unwell and assumed the child would be delivered the following day. However, treatment for her pregnancy continued on the basis of the treating obstetrician’s recommendation that labour should be induced at 41-42 weeks if it had not begun spontaneously. 

The appellant was born on 07.01.03 with cerebral palsy. It was accepted that had he been delivered before 16:09 on 04.01.03, he would have avoided brain injury and his consequent disabilities. Ms Butler alleged the Respondent hospital breached their duty of care in failing to offer induction of labour on 27.12.02, which would have avoided the appellant’s brain damage.

Notwithstanding the Respondent’s admitted breach of duty in failing to arrange further ultrasound imaging from 18.11.02, the High Court held that the decision to continue Ms Butler’s pregnancy until 41-42 weeks was in keeping with what a reasonable body of obstetric opinion would have recommended, despite the foetus’ condition. Therefore, applying the Bolam test, the High Court found it was not necessary for the Respondent to have advised Ms Butler of the specific risks of prolonging labour.

Decision

The Court of Appeal, applying Montgomery (which was decided after the High Court’s judgment), unanimously allowed the appeal on the following grounds:

  • The treating obstetrician failed to inform Ms Butler that there was an emerging but recent and incomplete material showing increased risks of delaying labour in cases of SGA and polyhydramnios.
  • Had Ms Butler been given the information that she should have been given, she would have elected delivery on 27.12.02, even if she had been advised of arguments in favour of non-intervention.
     
    Read other items in Hong Kong Medical Law Brief - April 2017