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Landmark judgment on informed consent in medical cases

Montgomery v. Lanarkshire Health Board [2015] UKSC 11

On 11th March 2015 the UK Supreme Court overturned the 1980s Sidaway judgment on informed consent in medical cases.  In Sidaway the House of Lords held that it was, on the whole, a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk.

The facts of the case before the court were that a Scottish baby boy was starved of oxygen during delivery and as a result sustained severe brain damage. The principle claim was against the mother’s obstetrician for failure to give adequate warning.  The claimant was diabetic and of small stature and, as diabetic mothers are likely to have larger babies, was at an increased risk of experiencing problems while giving birth. During delivery, the shoulders of the baby got stuck due to shoulder dystocia, causing injury. The obstetrician claimed she did not warn of the occurrence of shoulder dystocia due to the remote risk involved, an opinion that was supported by experts who gave evidence at trial.  The claimant indicated that had she been advised of the risks, she would have elected for a caesarean section.

The 7 judges sitting in the Supreme Court noted that, post-Sidaway, a number of English (and Australian and Canadian) court decisions ceased to follow the ‘doctor knows best’ approach of Sidaway.  The Court recognised that there are so many sources of information available to patients (internet, patient support groups etc) and therefore there is now a duty to involve a patient in treatment decisions.  This duty has been recognised in Strasbourg cases such as Glass v United Kingdom (2004) 39 EHRR 15.

This ruling places on patients the responsibility for taking risks that affect their own lives and living with the consequences of their choices. The court, however, outlined one limited exception – the ‘therapeutic exception’ – which allows a doctor to reasonably withhold information as to risk if disclosure would do serious detrimental damage to the patient’s health. The court emphasised that this rule should not be used simply where a doctor thinks that a patient is liable to make a choice that the doctor believes to be contrary to the patient’s best interests

Click here for an article from the BBC.

Medical Law