Montgomery v Lanarkshire Health Board [2015] UKSC 11

Case name:  Montgomery v Lanarkshire Health Board [2015] UKSC 11

What is the case about? This was the case in which the Supreme Court reacted to the “changing paradigm of the doctor-patient relationship”. Montgomery was not only one of the seminal cases in the law of clinical negligence in thirty years, it also recognised the importance of patient autonomy and the “stimulus of human rights” in informing what a doctor must tell his or her patient about the risks inherent in a particular type of procedure.

The context was an obstetrics case in which a diabetic mother had not been warned of the risk of an obstetric emergency arising during delivery of her child, namely shoulder dystocia, which occurs when the baby’s shoulder becomes stuck behind the mother’s pelvis. The risk was considered to be of the order of 9-10%, but eventuated, leading the child to suffer from hypoxia and, ultimately, cerebral palsy.

In ruling that the mother ought to have been informed of that risk and of the availability of a caesarean section, Montgomery represents a final repudiation of the mantra ‘doctor knows best’ and the approach of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. In Sidaway, their Lordships concluded that the question of what a patient must be told was to be answered by reference to the Bolam test: what would a ‘responsible body of medical opinion’ consider should be discussed?

The new test focuses not on whether a risk reaches a level expressed as a particular percentage, or on the doctor’s own view, or even on the reasonable patient’s view. Instead, a legal test of ‘material risk’ applies, and it may involve asking whether a risk is one that the particular patient would regard as significant (emphasis added):

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

This judgment is one of many handed down in 2015 that show that developments in human rights law do not only affect the lives of those on the fringes of society. Montgomery is likely to have an impact upon each of us every time we need medical care. Now perhaps more than ever before, “[p]atients are persons holding rights.” [75]