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Attorney(S)
- Appellant James Badenoch QC Colin J MacAulay QC Lauren Sutherland (Instructed by Balfour+Manson LLP)
- Respondent Rory Anderson QC Neil R Mackenzie (Instructed by NHS National Services Scotland Central Legal Office)
- Intervener (General Medical Council) Andrew Smith QC (Instructed by GMC Legal)
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Montgomery v. Lanarkshire Health Board
Smart Summary
Factual and Procedural Background
The Plaintiff, an insulin-dependent diabetic of small stature, delivered her first child at The Hospital on 1 October 1999. During the attempted vaginal birth the baby suffered shoulder dystocia, was deprived of oxygen for 12 minutes, and was born with cerebral palsy and Erb’s palsy. The Plaintiff alleges that the Defendant, a consultant obstetrician employed by Company A, negligently failed to:
- Advise her ante-natally of the 9-10% risk of shoulder dystocia and the alternative of an elective caesarean section.
- Perform a caesarean section during labour despite concerning CTG traces.
The Lord Ordinary (Judge [Bannatyne]) rejected both heads of negligence (2010 CSOH 104), applying the Sidaway/Bolam approach and finding (i) no breach of duty and (ii) no causation because the Plaintiff would allegedly not have chosen a caesarean in any event. The Inner House (Judges [Eassie], [Hardie] and [Emslie]) affirmed (2013 CSIH 3). The Plaintiff appealed to the Supreme Court, focusing on the ante-natal advice issue and seeking departure from Sidaway.
Legal Issues Presented
- Does the duty of care owed by a doctor when advising a patient fall to be judged by the Bolam professional-practice standard, or by a patient-centred “material risk” standard recognising patient autonomy?
- If a patient must be informed of “material risks”, was the 9-10% risk of shoulder dystocia a material risk in this case?
- On a correct view of causation, would the Plaintiff have elected an elective caesarean section if properly advised, thereby avoiding the child’s injuries?
Arguments of the Parties
Appellant's (Plaintiff's) Arguments
- Duty of disclosure: The Court should reject Sidaway and adopt a patient-autonomy standard requiring disclosure of material risks, evidenced by later UK, Commonwealth and ECHR authority.
- Materiality: A 9-10% incidence of shoulder dystocia, with potentially grave maternal and neonatal consequences, is material and should have been disclosed.
- Causation: Proper advice would have led the Plaintiff to request— and the Defendant to perform— an elective caesarean; alternatively, causation should follow Chester v Afshar even if a “but for” test is not met.
Respondent's (Defendant's) Arguments
- Professional practice: Under the Bolam/Hunter v Hanley test, a responsible body of obstetric opinion would not warn of shoulder dystocia because the probability of serious neonatal injury is very small.
- Questions from patient: The Plaintiff expressed only general anxiety, not specific questions triggering a duty to warn.
- Causation: Even if warned, the Plaintiff would still have chosen a vaginal delivery given the low probability of grave outcome and the risks inherent in caesarean section.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 | Applied Bolam test to disclosure of risks, with limited exceptions. | Overruled to the extent it applies Bolam to risk-disclosure; replaced by material-risk standard. |
| Chester v Afshar [2005] 1 AC 134 | Recognised patient autonomy and modified causation in failure-to-warn cases. | Considered but unnecessary to apply alternative causation once “but for” causation established. |
| Hunter v Hanley 1955 SC 200 | Scottish analogue of Bolam for medical negligence. | Held inapplicable to risk-disclosure issues. |
| Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 | Standard of reasonable practice set by responsible medical body. | Declared inappropriate for disclosure of risks. |
| Bolitho v City and Hackney HA [1998] AC 232 | Court may reject illogical expert evidence even under Bolam. | Difference between skill and advice emphasised; court need not defer to professional opinion on disclosure. |
| Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 | “Significant risk which would affect the judgment of a reasonable patient” must be disclosed. | Approved and preferred over Sidaway. |
| Jones v North West Strategic HA [2010] EWHC 178 | Shoulder dystocia risk itself is serious and material. | Cited as illustration supporting Plaintiff’s position. |
| Maynard v West Midlands RHA [1984] 1 WLR 634 | Endorsed Bolam for diagnosis/treatment. | Distinguished: advice not solely clinical skill. |
| Thomas v Thomas 1947 SC (HL) 45 | Appellate courts assume trial judge considered all evidence. | Not applied; trial judge overlooked critical evidence. |
| Reibl v Hughes [1980] 2 SCR 880 (Can.) | Material-risk standard; patient autonomy. | Foreign persuasive authority supporting new test. |
| Rogers v Whitaker (1992) 175 CLR 479 (Aus.) | Refined materiality: what reasonable patient or this patient would deem significant. | Adopted in Supreme Court’s final formulation. |
| Wyatt v Curtis [2003] EWCA Civ 1779 | Emphasised divergence between medical and patient perceptions of risk. | Quoted approvingly. |
| Birch v University College London Hospital NHS FT [2008] EWHC 2237 | Highlighted difficulty of reconciling Bolam with autonomy-based approach. | Cited in comparative discussion. |
| Glass v United Kingdom (2004) 39 EHRR 15 | ECHR Article 8 requires patient involvement in treatment decisions. | Used to support autonomy rationale. |
| Tysiac v Poland (2007) 45 EHRR 42 | Same as above. | Same application. |
| Airedale NHS Trust v Bland [1993] AC 789 | Self-determination as common-law value. | Cited as foundational principle. |
| Donoghue v Stevenson [1932] AC 562 | Imposition of negligence duties despite practical inconvenience. | Analogy to doctors’ duty to inform. |
| Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 | Protects autonomy interest. | Referenced by concurring opinion. |
| St George’s Healthcare NHS Trust v S [1999] Fam 26 | Pregnant women retain autonomy. | Used in concurring opinion’s illustration. |
| McGraddie v McGraddie [2013] UKSC 58 | Appellate restraint on fact-finding. | Noted but trial findings overturned due to error. |
| Henderson v Foxworth Investments Ltd [2014] UKSC 41 | Same principle as above. | Same application. |
| Higgins v J & C M Smith (Whiteinch) Ltd 1990 SC (HL) 63 | Rarity of overturning concurrent factual findings. | Discussed then departed from. |
| Rosenberg v Percival (2001) 205 CLR 434 | Materiality may be personalised to patient. | Quoted in comparative section. |
| S (An Infant) v S [1972] AC 24 | Self-determination foundational. | Cited in autonomy discussion. |
Court's Reasoning and Analysis
The Supreme Court (Judges [Kerr], [Reed], [Hale] and others) held that applying the Bolam professional-practice test to risk-disclosure is “manifestly untenable” in modern conditions. Developments in medical ethics, patient access to information, ECHR jurisprudence and comparative common-law authority emphasise patient autonomy.
The Court reformulated the duty as follows:
- A doctor must take reasonable care to ensure the patient is aware of any material risks of the recommended treatment and of reasonable alternatives.
- A risk is material if (a) a reasonable person in the patient’s position would likely attach significance to it, or (b) the doctor knows (or should know) this particular patient would likely attach significance to it.
- Percentage magnitude is not decisive; significance depends on factors such as severity of outcome, patient values, and availability of safer alternatives.
- The “therapeutic exception” allows non-disclosure only where disclosure would seriously harm the patient’s health, but it cannot be used to save the patient from an unwanted choice.
Applying the new standard, the 9-10% incidence of shoulder dystocia, coupled with grave maternal and neonatal consequences and the negligibly risky alternative of elective caesarean, was plainly material. The Defendant’s policy of routinely withholding the information because it might lead women to request caesareans was incompatible with respecting patient autonomy.
On causation, the earlier courts erred by focusing on the very small risk of catastrophic neonatal injury rather than the substantial risk of shoulder dystocia itself. Evidence— including the Defendant’s own admission that any informed diabetic patient “would have no doubt requested a caesarean section”— compelled the conclusion that, properly advised, the Plaintiff would have opted for an elective caesarean and the injuries would have been avoided.
Holding and Implications
APPEAL ALLOWED.
Company A is liable in negligence for the injuries suffered by the child. The ruling definitively replaces the Bolam test in the United Kingdom for risk-disclosure with a patient-centred material-risk standard, aligning domestic law with modern ethical guidance, ECHR principles, and Commonwealth jurisprudence. Healthcare professionals must now engage in meaningful dialogue, disclose material risks, and discuss reasonable alternatives; failure to do so will attract liability even if a body of medical opinion would have withheld the information.
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