July-21-2015 in Healthcare Law
Following a recent landmark decision in the matter of Montgomery v Lanarkshire Health Board, handed down by the UK Supreme Court on 11th March 2015, Alison Kelleher and Sharon McCauley highlight the key findings for healthcare professionals.
In the Montgomery case, the patient, Mrs Montgomery, was expecting her first baby. She was of small stature and suffered from insulin dependent diabetes mellitus, which increases the risk of foetal macrosomia (excessive birth weight) and the risk of shoulder dystocia by 9-10%. As a result of this high risk, she was regularly monitored intensively during pregnancy. Mrs Montgomery delivered her baby in what was described as very stressful circumstances following a Zavanelli manoeuvre and an attempted symphysiotomy. Mrs Montgomery’s child was diagnosed as suffering from cerebral palsy and a brachial plexus injury as a result of the difficulties in delivery.
Mrs Montgomery’s case was that if she had been advised of the risks of vaginal delivery appropriately and fully, she would have opted for an elective caesarean section and her son would have been delivered uninjured.
Risk factors
Evidence was heard that, during the course of her ante-natal care, Mrs Montgomery had raised concerns about giving birth vaginally. During the course of the trial, Mrs Montgomery’s consultant, C, gave evidence that it was her policy not to routinely advise diabetic women about the risk of shoulder dystocia and hypoxia as she perceived the risk of those problems materialising to be so small.
Her view was that if the risk of shoulder dystocia was explained, patients would opt for a caesarean section, which in her opinion, was not in the mother’s interest. The court heard that in similar patients to Mrs Montgomery, the risk of brachial plexus injury from shoulder dystocia was around 0.2% and the risk of the umbilical cord becoming trapped and causing oxygen deprivation was around 0.1%
Informed decision
A seven-judge Supreme Court held that C should have explained the risks of shoulder dystocia vaginal delivery to Mrs Montgomery.
The court found that:
- The assessment of risk to a patient cannot be reduced to percentages and the assessment of a risk is both fact-sensitive and also sensitive to the characteristics of the particular patient.
- The doctor’s role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of the condition, the anticipated benefits and risks of the proposed treatment and any reasonable alternatives so that she is in a position to make an informed decision.
- The patient should be able to make the decision whether to undergo a proposed course of treatment, making an informed choice even where she is liable to make a choice which a doctor considers to be contrary to her best interests.
Significant weight was placed on C’s evidence that she didn’t warn of the risks because, if she did, every expectant mother would opt for an elective section and that Mrs Montgomery should have been offered an elective section. Based on this evidence, it was found that Mrs Montgomery should have been warned of the risks and that, if she had, she would not have attempted a vaginal delivery.
Consent and understanding
The Irish Supreme Court case of Fitzpatrick v White (2007) confirms the High Court judgment of Geoghegan v Harris (2000) and states that the consent must be voluntary, must involve the requisite mental capacity and must be informed. The material risks must be disclosed and, when considering what is a material risk, the doctor must consider the statistical frequency of the risk and the severity of the consequences. The risk may be seen as material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it. The court will then apply a subjective test and consider whether, if the appropriate warnings were given, the patient would have proceeded with the treatment.
This can be contrasted with Mrs Montgomery’s case where the UK Supreme Court goes further than the current Irish Law in relation to consent. In Mrs Montgomery’s case the court stated that to enable a patient make an informed decision, the doctor/ hospital must have a conversation with the patient to “ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision”. The doctor’s advice has to be “sensitive to the characteristics of the patient”. It was further emphasised that the doctor’s obligation will only be discharged if the information is explained in a way the patient understands. The clear message from the UK Supreme Court is that the wishes of the competent patient are paramount, even when they conflict with what the doctor considers, even correctly, to be in the best interests of the patient.
Back to Full News