Clinical Negligence Academic Resources

BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE: QBD 1957

The Reader will note that it was Held.

 

McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising or professing to have that special skill. It is the duty of a professional man to exercise reasonable skill and care in the light of his actual knowledge and whether he exercised reasonable care cannot be answered by reference to a lesser degree of knowledge than he had, on the grounds that the ordinary competent practitioner would only have had that lesser degree of knowledge. This is not a gloss upon the test of negligence as applied to a professional man. That test is only to be applied where the professional man causes damage because he lacks some knowledge or awareness. The test establishes the degree of knowledge or awareness which he ought to have in that context. Where, however, a professional man has knowledge, and acts or fails to act in way which, having that knowledge he ought reasonably to foresee would cause damage, then, if the other aspects of duty are present, he would be liable in negligence by virtue of the direct application of Lord Atkins’ original test in Donoghue v Stevenson. ‘it is not enough to show that another expert would have given a different answer . . the issue is . . whether [the defendant] has acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession’ and ‘How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man . . But where you get a situation which involves some special skill or competence, then the test of whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.’


This case cites:

  • Cited – Donoghue (or M’Alister) v Stevenson HL ([1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, Hamlyn, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, Bailii, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47)
    The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. 


This case is cited by:

  • Applied – Penney and Others v East Kent Health Authority CA (Times 25-Nov-99, Gazette 08-Dec-99, [2000] PNLR 323, Bailii, [1999] EWCA Civ 3005)
    A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required.

  • Applied – Mirza v Birmingham Health Authority QBD (Bailii, [2001] EWHC QB 1)
    The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .

  • Cited – Airedale NHS Trust v Bland FD (lip, [1993] 2 WLR 316)
    The patient had suffered catastrophic injuries in 1989, leaving him in a persistent vegetative state (PVS). The doctors sought leave to discontinue life maintaining treatment and medical support.able result would be his death. 

  • Cited – Airedale NHS Trust v Bland HL (lip, [1993] AC 789, [1993] 2 WLR 316, Bailii, [1993] UKHL 17, Bailii, [1992] UKHL 5)
    The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .

  • Applied – Wilsher v Essex Area Health Authority CA (lip, [1986] 3 All ER 801, [1987] 2 WLR 425)
    A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .

  • Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD (lip, [1978] 1 WLR 266, [1977] 2 All ER 118)
    The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .

  • Cited – Regina (N) v Dr M and Others CA (Times 12-Dec-02, [2002] EWCA Civ 1789, [2003] 1 WLR 562, Bailii, [2003] Lloyd’s Rep Med 81, (2003) 72 BMLR 81, [2003] 1 FCR 124, [2003] 1 FLR 667, [2003] Fam Law 160)
    The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
    Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .

  • Cited – Sahib Foods Limited and Co-operative Insurance Society Limited v Paskin Kyriakides Sands (A Firm) TCC (Bailii, [2003] EWHC 142 (TCC))
    The claimants were lessees of premises, and the second claimants had contracted to purchase it. The premises burned down, and the claimants sought damages from the architect respondents. The fire began because of negligence by the claimant’s . .

  • Cited – Airedale NHS Trust v Bland CA (lip, [1993] 2 WLR 316)
    The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
    Held: The doctors sought permission to act in accordance with . .

  • Cited – Zubaida v Hargreaves CA ([1995] 1 EGLR 127)
    In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as . .

  • Cited – Singer and Friedlander Ltd v Wood ([1977] 2 EGLR 84)
    Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .

  • Cited – Lloyds TSB Bank Plc v Edward Symmons and Partners TCC (Bailii, [2003] EWHC 346 (TCC), Gazette 03-Apr-03)
    The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.

     

  • Cited – Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA (Times 05-May-99, Gazette 12-May-99, Bailii, [1999] 1 EGLR 171, [1999] EWCA Civ 1239, [2000] PNLR 498)
    An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice.

  • Cited – Bolitho v City and Hackney Health Authority HL (Gazette 10-Dec-97, Times 27-Nov-97, House of LordsBailii, [1997] UKHL 46, [1998] AC 232, [1997] 4 All ER 771, [1997] 3 WLR 1151)
    The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .

  • Cited – Calver v Westwood Veterinary Group CA (B2/2000/0108)
    The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. 

  • Cited – Goldstein v Levy Gee ( A Firm) ChD (Gazette 11-Sep-03, HC 02 C00884, Bailii, [2003] EWHC 1574 (Ch), Times 16-Jul-03)
    There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. 

  • Cited – A and Another v Essex County Council CA (Bailii, [2003] EWCA Civ 1848, Times 22-Jan-04, [2004] 1 WLR 1881)
    The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.

     

  • Cited – Simms, PA v Simms (Acting By the Official Solicitor As Litigation Friend), an NHS Trust (Acting By the Official Solicitor As Guardian Ad Litem), an NHS Trust FD (Bailii, [2002] EWHC 2734 (Fam))
    ‘In a situation where there is no application to the court, and the patient does not have capacity to make a decision about medical or surgical treatment, the doctor has, in my judgment, two duties. 

  • Cited – Roger Michael and others v Douglas Henry Miller and Another ChD (Bailii, [2004] EWCA Civ 282, Times 30-Mar-04)
    Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
    Held: In . .

  • Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA (Bailii, [1998] EWCA Civ 865, [1999] PIQR P53)
    A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.

     

  • Cited – Chester v Afshar HL ([2005] 1 AC 134, House of LordsBailii, [2004] UKHL 41, Times 19-Oct-04, [2004] 3 WLR 927, 67 BMLR 66)
    The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .

  • Cited – Maynard v West Midlands Regional Health Authority HL ([1985] 1 WLR 685, [1985] 1 All ER 635)
    The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. 

  • Cited – Carty v London Borough of Croydon CA (Bailii, [2005] EWCA Civ 19, Times 03-Feb-05, [2005] 1 WLR 2312)
    The claimant sought damages in negligence from education officers employed by the respondent. He appealed refusal of his claim..

  • Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA (Bailii, [2005] EWCA Civ 1003, Times 02-Aug-05, [2005] 2 FLR 1223, [2006] QB 273)
    The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .

  • Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL (Bailii, [2005] UKHL 72, House of Lords, Times 12-Dec-05, (2006) 87 BMLR 1, [2006] 1 All ER 786, [2006] 1 Lloyd’s Rep 231, [2005] 3 WLR 1320, [2006] 1 AC 495, [2005] 2 CLC 1083, [2006] PIQR P14, [2006] 1 All ER (Comm) 313)
    The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
    Held: The claimants’ appeal failed. The definition of . .

  • Cited – Lillywhite and Another v University College London Hospitals’ NHS Trust CA (Bailii, [2005] EWCA Civ 1466)
    The claimant sought damages for severe injuries suffered by their child at birth, and now appealed finding that the doctor had not been negligent. 

  • Cited – F v West Berkshire Health Authority HL ([1990] 2 AC 1, Bailii, [1991] UKHL 1)
    The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
    Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .

  • Cited – Sutcliffe v BMI Healthcare Ltd CA (Bailii, [2007] EWCA Civ 476)
    The claimant had undergone an operation, after which he slept with the assistance of self administered morphine. Whilst asleep, he vomited, but did not awake to expel it, and he uffered massive brain damage.
    Held: The judge had dealt properly . .

  • Dicta Approved – Chin Keow v Government of Malaysia PC ([1967] 1 WLR 813)
    . .

  • Cited – Whitehouse v Jordan HL ([1981] 1 WLR 246, Bailii, [1980] UKHL 12, [1981] 1 All ER 267)
    The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
    Held: In this case most of the evidence at issue . .

  • Cited – McFaddens (A Firm) v Platford TCC (Bailii, [2009] EWHC 126 (TCC))
    The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.

     

  • Cited – Mezey v South West London and St George’s Mental Health NHS Trust QBD (Bailii, [2008] EWHC B9 (QB))
    The claimant psychiatrist allowed freedom within the insecure grounds of the hospital to a newly admitted but unexamined patient. He left and committed a homicide. She was suspended pending disciplinary proceedings by the Trust. .

  • Cited – S v Airedale National Health Service Trust QBD ([2003] Lloyd’s Rep Med 21, [2003] MHLR 63, Times 05-Sep-02, Bailii, [2002] EWHC 1780 (Admin))
    The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.

     

  • Cited – Montgomery v Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC SummarySC, 2015 GWD 10-179, [2015] Med LR 149, 2015 SCLR 315, (2015) 143 BMLR 47, 2015 SLT 189, [2015] 2 WLR 768, [2015] 1 AC 1430, [2015] 2 All ER 1031, [2015] WLR(D) 123, [2015] PIQR P13, WLRD, UKSC 2013/0136)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. 

There has been considerable controversy sparked by the case and the courts are slowly moving away from it however, the impression gained thus far is that, while the courts are increasingly determined to see the Bolam (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) principle is not extended, they still have an innate reluctance to abandon it in respect of medical opinion (Mason & McCall Smith’s; Law and Medical Ethics (7th ed) page 317) 

In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle.

 

This will enable you to see the importance of the principle and the reasoning behind the reluctance of the courts to abandon the principle entirely. It will also be necessary to discuss the principle of informed consent and examine the decisions that have been reached by the courts since the decision handed down in Bolam. The realm of informed consent has been raised not only in cases of treatment of patients but has also been raised over the removal of organs from bodies during post mortem examinations. This will be discussed in more detail further into this study. Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. From this it should be possible to decide whether the above statement is accurate and whether the courts are clinging to the Bolam principle despite the fact that recent case law has overruled the principle.

 

 

The Bolam Principal

The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to. It was the contention of the plaintiff that the hospital had been negligent in not giving him any relaxant drugs or restraining him during the treatment. He alleged that if the hospital had done this he would not have been injured by flailing around and that due to their negligence he ought to be entitled to compensation. The plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved.

In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. The conclusion reached was that the hospital could only be regarded as negligent if the doctor failed to carry out the procedure in variance to how another medical professional would have done.

In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital[2] Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. In his summing up he stated

“The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.”

Lord Templeman went further in affirming the fact that there are times when the doctor’s would be justified in not warning a patient of the inherent risk. In his speech he stated

“I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everything…The doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctor’s training and experience and as a result of the doctor’s diagnosis of the patient. An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor’s contractual obligation to have regard to the patient’s best interests. Some information might confuse, other information might alarm a particular patient. Whenever the occasion arises for the doctor to tell the patient the results of the doctor’s diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said.

Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam.

In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. In this case Lord Browne-Wilkinson reminded the court that they are

“not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice”.

In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole where the doctor was found to be negligent in not treating the patient with penicillin despite several other medical practitioners also stating that they would not have used penicillin to treat the patient. It was the contention of Lord Browne-Wilkinson that

“The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.”

Informed consent

The principle of informed consent has been established from the recognition that every individual has the right to decide what treatment they wish to receive and the right to refuse treatment even in cases where the treatment might be essential to the preservation of their life. According to an article published by the Department of Health in 1990 patient’s have the right to refuse treatment or withdraw previously give consent.

 

In the paper the DOH commented that

“Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent”[5]

In a paper published by the General Medical Council in 1999 entitled Seeking patients’ consent: the ethical considerations the GMC commented on the importance of informed consent stating that

“Successful relationships between doctors and patients depend on trust. To establish that trust you must respect patients’ autonomy—their right to decide whether or not to undergo any medical intervention . . .”(They) . . . must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care[6].”

Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. Where the GMC feel that the negligence warrants such measures they have the power to remove a doctor or medical practitioner from the register essentially stopping these persons from being able to continue in their profession. In general terms a patient can either claim battery if they can prove that the procedure was performed without their consent or they can claim for negligence if they can show that the information they were given was insufficient for them to be able to give informed consent. In Chatterton v Gerson [1981][7] the court stated that the amount of information they regarded as ‘reasonable’ was to be determined with regard to the choices available to the patient.

It has been argued that in the UK there is no defined legal right in relation to informed consent, however protection has been offered through the Human Rights Act 1998 giving individuals a recognised autonomy over their own bodies. Kennedy and Grubb (2000)[8] commented on the evolution of the law with regard to informed consent and highlighted the way in which there has been a move towards an appreciation of the rights of the patient to be given sufficient information about the proposed treatment. The Department of Health in 2001[9] also recognised the right to informed consent which resulted in the publication of an advisory leaflet entitled Reference guide to consent for examination or treatment, which was available to anyone about to undergo any form of medical treatment. The Royal College of Surgeons[10] were also acutely aware of the need for better information to be given to patient’s and produced their own advisory leaflet in 1997 entitled The surgeon’s duty of care. This was aimed at reassuring patient’s of the standard of care they can expect when undergoing invasive treatment. It is evident from this that although there is no specific legislation in this area the right to informed consent is recognised.

The fight against informed consent

Although the courts have recognised the right to informed consent[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. Several researchers have conducted studies to determine the comprehension of patients in relation to information they have been given about their conditions. A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. He noted that many did not fully understand the prognosis of their condition or the treatment that the doctors were proposing. Similar findings were made by Macillop et al (1988)[14] and Sutherland, Lockwood and Till (1990)[15] in relation to patients suffering from cancer. In these studies the authors concluded that it was impossible to assert with authority that the patients had given informed consent to the treatment as many of those who participated in the research did not seem to fully understand the information they had been given. Lloyd (2001)[16] noted from his studies that although many patients had had the risks of treatment explained to them they did not fully understand the degree of risk posed by the treatment and they were therefore unable to give full informed consent. Lloyd also noticed that even in some instances when the patient did fully understand the risk posed they were unable to retain the information long enough in order to be able to consider the alternatives that had been offered to them by the doctors.

The decision of the court in Rogers v Whittaker 1992 highlighted the legal duty of doctors in relation to the disclosure of information concerning the prognosis and treatment of the patient. This case rejected the principles laid down by Bolam and emphasised that the doctors should determine the level of disclosure for each individual patient based on their own evaluation of the ability of the patient to understand what they are being told. Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. In this case the court felt that disclosure should be based on the nature of the proposed treatment as well as the general temperament and health of the patient. Consideration should be given to the patient’s desire for information but not in isolation from the mental state of the individual or their ability to comprehend the information given to them.

Within the area of informed consent further difficulties are added when either the patient is a minor or the patient has a mental condition which prevents them from being able to make rational choices for themselves. This is particularly the case in relation to those who have to be forcibly placed in mental institutions either for their own safety or for the safety of others.

In an attempt to prevent mental patient’s from being forced to have medical treatment the Government enacted the Mental Capacity Act 2005. In s1(2) of the 2005 Act the legislation recognises that a person must be presumed to have capacity unless it is established that he lacks capacity[17]. S1(3) goes on further to recognise that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success[18], whilst s1(4) confirms that a patient is not to be treated as unable to make a decision merely because he makes an unwise decision[19].

Concerns were raised, when the 2005 Act was being enacted, that the insertion of s28 into the Act might allow a patient suffering from anorexia nervosa to refuse to be force fed, which could ultimately lead to the death of the patient. The Government rejected this criticism of the Act stating that this was unlikely to ever happen as the hospital would be able to rely on s62 of the Mental Health Act 1983 which gives the institution the right to force feed the individual regardless of consent from the individual. S62 of the 1983 Act allows the hospital to force a patient to have treatment if they can show that it is their belief that stopping treatment would cause severe suffering to the patient. Cases such as Re W[20] and Re KB[21] demonstrate the power of the court to order the patient to be force fed. One of the compelling points made by Lord Donaldson MR in Re W has frequently been used as an argument for the compulsory feeding of patients with anorexia. In his summation he observed that one of the primary features of anorexia was

‘a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. This attitude is part and parcel of the disease and the more advanced the disease, the more compelling it may become[22].

This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. Many patients with anorexia have tried to argue that force feeding cannot be regarded as treatment however the courts have rejected these arguments and have adopted the stance as regarding the feeding of the patient as treatment.

This same view was used in helping the court to decide on whether it was lawful to discontinue feeding a patient who was in a persistent vegetative state. In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. He was able to breathe unaided but was never going to awake from this state. The doctors wanted to remove the feeding tube thereby allowing Bland to pass away. The courts were initially loathe to do this as this was tantamount to killing the patient. By using the analogy with the force feeding of patients with anorexia the courts were able to conclude that the feeding tube could be regarded as medical treatment and that the doctors should be able to discontinue any treatment if there was no beneficial effect from that treatment.

It was impossible for the patient in this case to give informed consent as he lacked the capacity to communicate in anyway. The courts allowed his parents as next of kin to be able to make that decision for him, knowing that the removal of the tube would result in his death. As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. As yet these fears have been unfounded.

Informed consent

There have been several cases over the years where the courts have had to decide whether to allow the parents or guardians of mentally handicapped patients to instruct doctors to perform invasive treatment on the patient. This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. Many campaigners for the rights of mentally handicapped people have objected to parents seeking to have the child sterilised arguing that this is a violation of the right of the woman to reproduce. This was argued in the case of Re D (A Minor) (Wardship: Sterilisation)[24]. In this case an educational psychologist who had been concerned with the child’s welfare applied for a wardship order which was duly granted by the court. The child’s mother had asked a hospital to sterilise her daughter as she was concerned that her daughter who had a substantial handicap might be seduced and become pregnant and give birth to an abnormal child. The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. The court upheld the order stating that there was no medical reason for performing this operation and that the child should be protected until she was able to make informed consent on the issue.

Although the right to reproduce was confirmed by the House of Lords in the case of Re B (A Minor) (Wardship: Sterilisation) [1987][25], the local authority applied for wardship so as to force the child to be sterilised. In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. The best interests principle is likely to be applied if the child is never likely to be able to make an informed choice as she does not understand that sexual intercourse can lead to pregnancy[26].

In such cases it is unlikely that doctors would be likely to face charges of negligence for failing to obtain informed consent as the courts have effectively delegated the informed consent to the parent or guardian of the handicapped patient. Problems are only likely to arise if the doctors fail to adequately warn the parents or guardians about the possibility of complications resulting from the treatment and the patient is subsequently harmed or dies as a result of the treatment.

Ways in which doctors might avoid a claim for negligence

In the case of Smith v Tunbridge Wells Health Authority[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. In this case the doctors had commented to the patient that risks were ‘not uncommon’, but they did not express to the patient the number of occasions were complications had occurred. The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur.

Reluctance to overrule Bolam

Doctors and the courts are reluctant to overrule Bolam totally especially since it the number of successful claims for negligence has risen dramatically in Australia since the decision of the court in Chappel v Hart[28]. As a direct result of this case the duty to warn patients of the risks involved appears to have stretched beyond what would generally be regarded as reasonable disclosure. The extent of the warning that needs to be given in line with the decision of Chappel v Hart has made it easier for patients to be able to successfully prove negligence as many doctors fail to provide the amount of information that this case states needs to be disclosed. In this case the court stated that the doctor should have informed the patient of their lack of experience in performing this particular operation so that they could make their decision as to whether to undergo the operation in the full knowledge of the risks involved. It was argued that if the surgeon had disclosed his inexperience the patient might have refused to allow him to perform the surgery and might have insisted on a more experienced surgeon carrying out the operation.

The UK courts have expressed their concern at the prospect of endorsing this level of disclosure as it could result in young doctors not being given the opportunities to acquire the skills to be able to perform such procedures in the future. The courts also feel that senior medical professionals would become more powerful and that junior doctors would veer away from challenging any mistakes made by the senior doctors. Since most doctors learn through practical experience this could be denied to them if the courts were to follow the model established in Australia and insist on doctors disclosing their level of expertise to the patients.

Despite the fact that several cases have overruled Bolam the courts are still insistent that the plaintiff must establish causation in order to hold the doctor as responsible for the outcome of the treatment. This was emphasised in the case of South Australian Asset Management Corp v York Montague Ltd[29] in which Lord Hoffman made the point that it would be wrong to hold a doctor responsible for an unforeseeable event. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. He stated in this case that if a mountaineer had sought an opinion about the condition of a his knee before attempting to climb a mountain and the doctor declared his knee to be fit but then the mountaineer suffers an injury not related to his knee, such as a landslide, then the doctor should not be liable for the injuries sustained. It was felt by Lord Hoffman that the court should adopt this approach in determining liability for negligence during medical treatment. He stated that there are occasions when complications arise in theatre or during the course of the treatment of the patient that cannot be regarded as reasonably foreseeable and therefore allowance should be given for the failure of the doctor to warn of the remote possibility of such complications.

It can be concluded from the above that although in some instances there has been a move away from the protection afforded by Bolam the courts are not prepared to totally abolish the ruling as the knock on effect could be devastating for the medical profession. Abolishing Bolam in totality could lead to an influx of claims for negligence, and an inability for doctors to be able to treat patients in the way they regard as best for the patient for fear of facing litigation if the treatment is not successful. It could also lead to claims against doctors for disclosing too much information as in some instances the disclosure might cause psychiatric harm to the patient. Drickamer and Lachs (1992)[30] made the point that doctors should consider the best interests of the patient in determining whether to disclose the prognosis of the illness to the patient. They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. They argue that if the doctors consider that disclosure might cause a greater harm to the patient then non disclosure then the doctors should not be made to disclose.

It is unlikely that Bolam will be abolished entirely as the evidence above shows the problems that are likely to occur if the courts took the decision to abolish the ruling.

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Bolitho v City and Hackney Health Authority [1998] 2 AC 232

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Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? Journal of Medical Ethics, 20, 205-206

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Drickamer, M. A. & Lachs, M. S. (1992) Should patients with Alzheimer’s disease be told their diagnosis? New England Journal of Medicine, 326, 947–951

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General Medical Council. Seeking patients’ consent: the ethical considerations. London: General Medical Council, 1999: 2.

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Lloyd A. The extent of patients’ understanding of the risk of treatments. Quality in Health Care 2001;10(Suppl I):i14–18

Macillop W, Stewart W, Ginsburg A, et al. Cancer patients’ perceptions of their disease and its treatment. British Journal Cancer 1988;58:355–8

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Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339

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Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997)

Bolitho v. City and Hackney Health Authority

​ON 13 NOVEMBER 1997, LORD BROWNE-WILKINSON

My Lords,

    This appeal raises two questions relating to liability for medical negligence. The first, which I believe to be more apparent than real, relates to the proof of causation when the negligent act is one of omission. The second concerns the approach to professional negligence laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583.

    The claim relates to treatment received by Patrick Nigel Bolitho at St. Bartholomew's Hospital on 16 and 17 January 1984 when he was two years old. Patrick suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. The issues investigated at trial were wide ranging but as a result of the judge's findings I can state the relevant facts quite shortly.

    On 11 January 1984 Patrick was admitted to St. Bartholomew's suffering from croup and was treated under the care of the senior paediatric registrar, Dr. Janet Horn, and the senior house officer in paediatrics, Dr. Keri Rodger. On 15 January he was discharged home. No complaint is made about this episode in his treatment.

    On the evening of 16 January his parents became concerned about his condition. He had not slept well and had been restless; further he seemed to be having increasing difficulty in breathing and was wheezier. As a result he was re-admitted to St. Bartholomew's on the evening of 16 January. Dr. Rodger examined him and was also concerned about his condition. At 8.30 p.m. she arranged for him to be nursed by a special nurse on a one-to-one basis. On the following morning, 17 January, the medical notes indicated that he was much better but that there was still reduced air entry on the left side. He was seen on the morning round by the consultant who carried out an examination (albeit not a full one) but he was not concerned about his condition. Patrick ate a large lunch.

    At around 12.40 p.m. on 17 January there occurred the first episode. The nurse who was observing Patrick summoned Sister Sallabank, a skilled and experienced nurse. Sister Sallabank described his respiratory sounds as "awful" but reported that surprisingly he was still talking. He was very white in colour. The sister was sufficiently concerned about his condition to bleep Dr. Horn rather than to go through the usual chain of command by first contacting the senior house officer, Dr. Rodger. She took this course because she felt something was acutely wrong. Sister Sallabank asked Dr. Horn to come and see Patrick straight away as he was having difficulty in breathing and was very white. Dr. Horn seemed alarmed that Patrick was in such distress when he had appeared perfectly well a short time before during the consultant's round. Sister Sallabank told Dr. Horn that there had been a notable change in Patrick's colour and that he sounded as though something was stuck in his throat. Dr. Horn said that she would attend as soon as possible. In the event, neither she nor Dr. Rodger came to see Patrick. When Sister Sallabank returned to Patrick she was extremely surprised to see him walking about again with a decidedly pink colour. She requested a nurse to stay with Patrick.

    At around 2 p.m. the second episode occurred. The nurse observing Patrick called Sister Sallabank back to Patrick. Sister Sallabank saw that he was in the same difficulties as he had been in at 12.40 p.m. and she became very worried. She went off to telephone Dr. Horn again. Dr. Horn informed Sister Sallabank over the telephone that she was on afternoon clinic and had asked Dr. Rodger to come in her place. While the sister was talking to Dr. Horn, the nurse reported to her that Patrick was now pink again; the sister then took the opportunity to explain to Dr. Horn in detail the episodes which Patrick had experienced. Dr. Rodger did not attend Patrick after the second episode. Her evidence was that her bleep was not working because of flat batteries so that she never got the message.

    After the second episode, Sister Sallabank instructed Nurse Newbold to sit with Patrick: she was told that the doctors were coming to see him because he had been unwell earlier. Nurse Newbold tried to take Patrick's pulse and rate of respiration but this proved very difficult as he appeared quite well and was jumping about and playing in his cot. She described Patrick as being very chatty and interested in reading the letters on a dish.

    At about 2.30 p.m. the events leading to the final catastrophe began. There was a change in Patrick's condition. Although he retained his colour he became a little agitated and began to cry. Nurse Newbold left a colleague with Patrick and reported to Sister Sallabank who told her to bleep the doctors again. While she was on the telephone to the doctors, the emergency buzzer sounded having been set off by the nurse left with Patrick. Nurse Newbold immediately returned to Patrick. Sister Sallabank also heard the buzzer and sent out a call for the cardiac arrest team. Patrick had collapsed because his respiratory system was entirely blocked and he was unable to breathe. As a result he suffered a cardiac arrest. He was revived but there was a period of some nine to ten minutes before the restoration of respiratory and cardiac functions. In consequence, Patrick sustained severe brain damage. He has subsequently died and these proceedings have been continued by his mother as administratrix of his estate.

    The case came on for trial before Hutchinson J. There was a conflict of evidence between Sister Sallabank and Dr. Horn as to what was said to Dr. Horn in the course of the two telephone calls at about 12.40 and 2 p.m. The judge accepted Sister Sallabank's version (which is the one I have summarised above). On that basis, the defendants accepted that Dr. Horn was in breach of her duty of care after receiving such telephone calls not to have attended Patrick or arranged for a suitable deputy to do so.

    Negligence having been established, the question of causation had to be decided: would the cardiac arrest have been avoided if Dr. Horn or some other suitable deputy had attended as they should have done. By the end of the trial it was common ground, first, that intubation so as to provide an air way in any event would have ensured that the respiratory failure which occurred did not lead to cardiac arrest and, second, that such intubation would have had to be carried out, if at all, before the final catastrophic episode.

    The judge identified the questions he had to answer as follows:

  •  "[Mr. Owen, for the defendants] submitted therefore that (if once it was held that Dr. Horn was negligent in failing to attend at either 12.40 p.m. or 2 p.m) the sole issue was whether Patrick would on one or other of these occasions have been intubated. In submitting that on this aspect of the case the issue was what would Dr. Horn or another competent doctor sent in her place have done had they attended, Mr. Owen was, I think, accepting that the real question was what would Dr. Horn or that other doctor have done, or what should they have done. As it seems to me, if Dr. Horn would have intubated, then the plaintiff succeeds, whether or not that is a course which all reasonably competent practitioners would have followed. If, however, Dr. Horn would not have intubated, then the plaintiff can only succeed if such failure was contrary to accepted medical practice (I am not purporting to consider the legal tests in detail, and merely using shorthand at this stage). . . . Common to both sides is the recognition that I must decide whether Dr. Horn would have intubated (or made preparations for intubation), and, even if she would not, whether such a failure on her part would have been contrary to accepted practice in the profession." (Emphasis added.)

  •  

    As to the first of those issues, Dr. Horn's evidence was that, had she come to see Patrick at 2 p.m., she would not have arranged for him to be intubated. The judge accepted this evidence. However, he found that she would have made preparation to ensure that speedy intubation could take place: in the event that proved to be an irrelevant finding since the judge found that such preparations would have made no difference to the outcome. Therefore, the judge answered the first of his two questions by holding that Dr. Horn would not herself have intubated if, contrary to the facts, she had attended.

    As to the second of the judge's questions (i.e. whether any competent doctor should have intubated if he had attended Patrick at any time after 2 p.m.), the judge had evidence from no less than eight medical experts, all of them distinguished. Five of them were called on behalf of Patrick and were all of the view that, at least after the second episode, any competent doctor would have intubated. Of these five, the judge was most impressed by Dr. Heaf, a consultant paediatrician in respiratory medicine at the Royal Liverpool Children's Hospital, which is the largest children's hospital in the United Kingdom. On the other side, the defendants called three experts all of whom said that, on the symptoms presented by Patrick as recounted by Sister Sallabank and Nurse Newbold, intubation would not have been appropriate. Of the defendants' experts, the judge found Dr. Dinwiddie, a consultant paediatrician in respiratory diseases at the Great Ormond Street Hospital, most impressive.

    The views of the plaintiff's experts were largely based on the premise that over the last two hours before the catastrophe Patrick was in a state of respiratory distress progressing inexorably to hypoxia and respiratory failure. The defendants' experts, on the other hand, considered the facts as recounted by Sister Sallabank indicated that Patrick was quite well apart from the two quite sudden acute episodes at 12.40 p.m. and 2 p.m. The judge held that the evidence of Sister Sallabank and Nurse Newbold as to Patrick's behaviour (which he accepted) was inconsistent with a child passing through the stages of progressive hypoxia.

    Having made his findings of fact, the judge directed himself as to the law by reference to the speech of Lord Scarman in Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634, 639:

  •  ". . . I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary." (Emphasis added.)

  •  

The judge held that the views of Dr. Heaf and Dr. Dinwiddie, though diametrically opposed, both represented a responsible body of professional opinion espoused by distinguished and truthful experts. Therefore, he held, Dr. Horn, if she had attended and not intubated, would have come up to a proper level of skill and competence, i.e. the standard represented by Dr. Dinwiddie's views. Accordingly he held that it had not been proved that the admitted breach of duty by the defendants had caused the catastrophe which occurred to Patrick.

    An appeal to the Court of Appeal was dismissed by Dillon and Farquharson L.JJ., Simon Brown L.J. dissenting. Their decision is reported only in [1994] 1 Med. L.R. 381. I will have to consider some of their reasons hereafter.

The Bolam test and causation

    The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill or competence is the direction to the jury given by McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583, 587:

  •  "I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

  •  

It was this test which Lord Scarman was repeating, in different words, in Maynard's case in the passage by reference to which the judge directed himself.

    Before your Lordships, Mr. Brennan, for the appellant, submitted, first, that the Bolam test has no application in deciding questions of causation and, secondly, that the judge misdirected himself by treating it as being so relevant. This argument, which was raised for the first time by amendment to the notice of appeal in the Court of Appeal, commended itself to Simon Brown L.J. and was the basis on which he dissented. I have no doubt that, in the generality of cases, the proposition of law is correct but equally have no doubt that the judge in the circumstances of the present case was not guilty of any self-misdirection.

 Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; Wilsher v. Essex Area Health Authority [1988] A.C. 1074. In all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred. In a case of non-attendance by a doctor, there may be cases in which there is a doubt as to which doctor would have attended if the duty had been fulfilled. But in this case there was no doubt: if the duty had been carried out it would have either been Dr. Horn or Dr. Rodger, the only two doctors at St. Bartholomew's who had responsibility for Patrick and were on duty. Therefore in the present case, the first relevant question is "what would Dr. Horn or Dr. Rodger have done if they had attended?" As to Dr. Horn, the judge accepted her evidence that she would not have intubated. By inference, although not expressly, the judge must have accepted that Dr. Rodger also would not have intubated: as a senior house officer she would not have intubated without the approval of her senior registrar, Dr. Horn.

    Therefore the Bolam test had no part to play in determining the first question, viz. what would have happened? Nor can I see any circumstances in which the Bolam test could be relevant to such a question.

    However in the present case the answer to the question "what would have happened?" is not determinative of the issue of causation. At the trial the defendants accepted that if the professional standard of care required any doctor who attended to intubate Patrick, Patrick's claim must succeed. Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter. I have no doubt that this concession was rightly made by the defendants. But there is some difficulty in analysing why it was correct. I adopt the analysis of Hobhouse L.J. in Joyce v. Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. L.R. 1. In commenting on the decision of the Court of Appeal in the present case, he said, at p. 20:

  •  "Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated."

  •  

    There were, therefore, two questions for the judge to decide on causation: (1) What would Dr. Horn have done, or authorised to be done, if she had attended Patrick? and (2) If she would not have intubated, would that have been negligent? The Bolam test has no relevance to the first of those questions but is central to the second.

    There can be no doubt that, as the majority of the Court of Appeal held, the judge directed himself correctly in accordance with that approach. The passages from his judgment which I have quoted (and in particular those that I have underlined) demonstrate this. The dissenting judgment of Simon Brown L.J. in the Court of Appeal is based on a misreading of the judge's judgment. He treats the judge as having only asked himself one question, namely, the second question. To the extent that the Lord Justice noticed the first question--would Dr. Horn have intubated?--he said that the judge was wrong to accept Dr. Horn's evidence that she would not have intubated. In my judgment it was for the judge to assess the truth of her evidence on this issue.

    Accordingly the judge asked himself the right questions and answered them on the right basis.

The Bolam test--should the judge have accepted Dr. Dinwiddie's evidence?

    As I have said, the judge took a very favourable view of Dr. Dinwiddie as an expert. He said:

  •  ". . . I have to say of Dr. Dinwiddie also, that he displayed what seemed to me to be a profound knowledge of paediatric respiratory medicine, coupled with impartiality, and there is no doubt, in my view, of the genuineness of his opinion that intubation was not indicated."

  •  

However, the judge also expressed these doubts:

  •  "Mr. Brennan also advanced a powerful argument--which I have to say, as a layman, appealed to me--to the effect that the views of the defendant's experts simply were not logical or sensible. Given the recent and the more remote history of Patrick's illness, culminating in these two episodes, surely it was unreasonable and illogical not to anticipate the recurrence of a life- threatening event and take the step which it was acknowledged would probably have saved Patrick from harm? This was the safe option, whatever was suspected as the cause, or even if the cause was thought to be a mystery. The difficulty of this approach, as in the end I think Mr. Brennan acknowledged, was that in effect it invited me to substitute my own views for those of the medical experts."

  •  

    Mr. Brennan renewed that submission both before the Court of Appeal (who unanimously rejected it) and before your Lordships. He submitted that the judge had wrongly treated the Bolam test as requiring him to accept the views of one truthful body of expert professional advice even though he was unpersuaded of its logical force. He submitted that the judge was wrong in law in adopting that approach and that ultimately it was for the court, not for medical opinion, to decide what was the standard of care required of a professional in the circumstances of each particular case.

    My Lords, I agree with these submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated [1957] 1 W.L.R. 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives -responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

    There are decisions which demonstrate that the judge is entitled to approach expert professional opinion on this basis. For example, in Hucks v. Cole (a case from 1968 reported in [1993] 4 Med. L.R. 393), a doctor failed to treat with penicillin a patient who was suffering from septic places on her skin though he knew them to contain organisms capable of leading to puerperal fever. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. The Court of Appeal found the defendant to have been negligent. Sachs L.J. said, at p. 397:

  •  "When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna--particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas."

  •  

    Again, in Edward Wong Finance Co. Ltd. v. Johnson Stokes & Master [1984] 1 A.C. 296, the defendant's solicitors had conducted the completion of a mortgage transaction in "Hong Kong style" rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This practice opened the gateway through which a dishonest solicitor for the borrower absconded with the loan money without providing the security documents for such loan. The Privy Council held that even though completion in Hong Kong style was almost universally adopted in Hong Kong and was therefore in accordance with a body of professional opinion there, the defendant's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible.

    These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

    I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed.

    I turn to consider whether this is one of those rare cases. Like the Court of Appeal, in my judgment it plainly is not. Although the judge does not in turn say so, it was implicit in his judgment that he accepted that Dr. Dinwiddie's view was a reasonable view for a doctor to hold. As I read his judgment, he was quoting counsel's submission when he described the view that intubation was not the right course as being "unreasonable and illogical." The appeal of the argument was to the judge "as a layman" not a conclusion he had reached on all the medical evidence. He refused to "substitute his own views for those of the medical experts." I read him as saying that, without expert evidence he would have thought that the risk involved would have called for intubation, but that he could not dismiss Dr. Dinwiddie's views to the contrary as being illogical.

    Even if this is to put too favourable a meaning on the judge's judgment, when the evidence is looked at it is plainly not a case in which Dr. Dinwiddie's views can be dismissed as illogical. According to the accounts of Sister Sallabank and Nurse Newbold, although Patrick had had two severe respiratory crises, he had recovered quickly from both and for the rest presented as a child who was active and running about. Dr. Dinwiddie's view was that these symptoms did not show a progressive respiratory collapse and that there was only a small risk of total respiratory failure. Intubation is not a routine, risk-free process. Dr. Roberton described it as "a major undertaking--an invasive procedure with mortality and morbidity attached--it was an assault." It involves anaesthetising and ventilating the child. A young child does not tolerate a tube easily "at any rate for a day or two" and the child unless sedated tends to remove it. In those circumstances it cannot be suggested that it was illogical for Dr. Dinwiddie a most distinguished expert to favour running what, in his view, was a small risk of total respiratory collapse rather than to submit Patrick to the invasive procedure of intubation.

    Tragic though this case is for Patrick's mother and much as everyone must sympathise with her, I consider that the judge and the Court of Appeal reached the right conclusions on the evidence in this case. I would dismiss the appeal.


 

LORD SLYNN OF HADLEY

 

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. I agree with his analysis of the questions which have to be decided in cases of this kind and of the correct approach in law in deciding them. Despite my anxiety as to the result in this particular case, it is to me clear that Hutchinson J. asked the right questions and did not misdirect himself in answering them. He was entitled on all the evidence to accept that of Dr. Dinwiddie. Accordingly, I agree that this appeal must be dismissed.


 

LORD NOLAN

 

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons which he has given, I, too, would dismiss this appeal.


 

LORD HOFFMANN

 

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For the reasons which he has given, I, too, would dismiss this appeal.


 

LORD CLYDE

 

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For the reasons which he has given, I, too, would dismiss this appeal.​ 

Full Text

QUEEN'S BENCH DIVISION


MCNAIR J
20, 21, 22, 25, 26 FEBRUARY 1957

  • Hospital – Negligence – Electro-convulsive thereapy – Relaxant drugs not administered, and patient not restrained by manual control – Two recognised schools of thought on method of treatment – Whether doctor following one school negligent – Whether duty to warn of risks.

  • Medical Practitioner – Negligence – Test of liability – Whether under duty, when advising electro-convulsive therapy, to warn of risks.

In 1954 the plaintiff, who was suffering from mental illness, was advised by a consultant attached to the defendants' hospital to undergo electro-convulsive thereapy. He signed a form of consent to the treatment but was not warned of the risk of fracture involved. There was evidence that the risk of fracture was very small, viz, of the order of one in ten thousand. On the second occasion when the treatment was given to the plaintiff in the defendants' hospital he sustained fractures. No relaxant drugs or manual control (save for support of the lower jaw) were used, but a male nurse stood on each side of the treatment couch throughout the treatment. The use of relaxant drugs would admittedly have excluded the risk of fracture. Among those skilled in the profession and experienced in this form of therapy, however, there were two bodies of opinion, one of which (since 1953) favoured the use of relaxant drugs or manual control as a general practice, and the other of which, thinking that the use of these drugs was attended by mortality risks, confined the use of relaxant drugs to cases where there were particular reasons for their use. The plaintiff's case was not such a case. Similarly there were two bodies of competent opinion on the question whether, if relaxant drugs were not used, manual control should be used. So, too, different views were held among competent professional men on the question whether a patient should be expressly warned about risk of fracture before being treated, or should be left to inquire what the risk was; and there was evidence that in cases of mental illness explanation of risk might well not affect the patient's decision whether to undergo the treatment. The plaintiff having sued the defendants for negligence in the administration of the treatment, viz, in not using relaxant drugs or some form of manual control, and in failing to warn him of the risk involved before the treatment was given, the jury returned a verdict for the defendants. In the summing-up,

The jury were directed: (i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.

Principle stated by Lord President Clyde in Hunter v Hanley ([1955] SLT at p 217) applied (see p 122, letter b, post).

(ii) that the jury might well think that when a doctor was dealing with a mentally sick man and had a strong belief that his only hope of cure was submission to electro-convulsive therapy, the doctor could not be criticised if, believing the dangers involved in the treatment to be minimal, he did not stress them to the patient (see p 124, letter g, post).

(iii) in order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment (see p 124, letter i, post).

Notes

The view that the duty of a medical practitioner does not necessarily extend, as a consequence of the confidential relationship between doctor and patient, to warning the patient of the dangers of proposed treatment, unless the patient makes inquiry concerning them, accords with Canadian

[1957] 2 All ER 118 at 119

authority (see Kenney v Lockwooda, [1932] 1 DLR 507). The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; see 70 Corpus Juris Secundum (1951) 952, 953, para 44. Moreover it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence (ibid, 971, para 48 m).

As to the civil liability of a medical practitioner for wrongful acts, see 22 Halsbury's Laws (2nd Edn) 318, 319, paras 601–603; and as to negligence in the practice of a profession, see 23 Halsbury's Laws (2nd Edn) 577–579, para 829.

Cases referred to in judgmentb

Hunter v Hanley, [1955] SLT 213.

Roe v Ministry of Health, Woolley v Ministry of Health, [1954] 2 All ER 131; [1954] 2 QB 66; 3rd Digest Supp.

Action

In this action John Hector Bolam, the plaintiff, claimed damages against Friern Hospital Management Committee, the defendants, in respect of injuries which he received while undergoing electro-convulsive therapy on 23 August 1954, at Friern Hospital.

  • a     This was an appeal from McEvoy J reported sub nom Kinney v Lockwood Clinic Ltd ([1931] 4 DLR 906)

b     The defendants also cited Marshall v Lindsey County Council, [1936] 2 All ER 1076; Hatcher v Black (1954), The Times, 2 July

The plaintiff, a salesman, was admitted to Friern Hospital on 29 April 1954, suffering from the after-effects of a mental illness of the depressive type. He was discharged from the hospital on 30 July 1954, but was readmitted on 16 August 1954, suffering from depression. On 18 August the plaintiff was examined by Dr J de Bastarrechea, consultant psychiatrist attached to Friern Hospital, who advised the plaintiff to undergo electro-convulsive therapy, and told him that it was proposed to apply that treatment on the following day. Electro–convulsive therapy is carried out by placing electrodes on the head which allow an electric current from a machine to pass through the brain. One of the results of the treatment is to cause convulsions in the nature of a fit. Dr de Bastarrechea did not warn the plaintiff of the risks involved, one of which was the risk of fracture. The plaintiff signed a form consenting to the treatment. On 19 August the plaintiff was treated with electro-convulsive therapy. He again received this treatment on 23 August when it was administered by Dr C Allfrey, a senior registrar at Friern Hospital. On this occasion an initial shock was passed through the plaintiff's brain for approximately one second and was followed within approximately four seconds by a succession of five momentary shocks administered for the purpose of damping the amplitude of the jerking movements of the plaintiff's body. No further shocks were administered and the convulsion was not unusually violent. The voltage of the current was 150 volts, the frequency fifty cycles per second. During this treatment the plaintiff lay in a supine position, a pillow was placed under his back, and his lower jaw was supported on a month gag by a male nurse; otherwise, he was not restrained in any way, although a male nurse stood at each side (viz, three male nurses in all) of him in case he should move from it. No relaxant drugs were administered to the plaintiff prior to the treatment. In the course of this treatment the plaintiff sustained severe physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each side which were caused by the head of the femur on each side being driven through the acetabulum or cup on the pelvis.

The medical evidence showed that competent doctors held divergent views on the desirability of using relaxant drugs, and restraining the patient's body

[1957] 2 All ER 118 at 120

by manual control, and also on the question of warning a patient of the risks of electro-convulsive therapy.

The plaintiff contended that the defendants were negligent in permitting Dr Allfrey to administer electro-convulsive therapy without the previous administration of a relaxant drug, or without restraining the convulsive movements of the plaintiff by manual control, and in failing to warn the plaintiff of the risk which he was taking in consenting to have the treatment; and, further, that Dr Allfrey was negligent in so administering the treatment and that the defendants were vicariously responsible for that negligence.

N R Fox-Andrews QC and R F Ormrod for the plaintiff.

J Stirling QC and E D Sutcliff for the defendants.



26 February 1957. The following judgment was delivered.
MCNAIR J.

Members of the jury, when some days ago this case was opened to you by counsel for the plaintiff and you were told the tragic story of this plaintiff's sufferings and his experience, and when you later saw him in the witness-box and saw what a hopeless condition he was in, you must inevitably have been moved to pity and compassion. Nobody hearing that story or seeing that man could fail to be so moved; but counsel have told you, rightly, that the jury is not entitled to give damages based on sympathy or compassion. You will only give damages if you are satisfied that the defendants have been proved to be guilty of negligence. Counsel for the plaintiff accepts that he has to satisfy you, first, that there was some act of negligence, in the sense which I will describe in a moment, on behalf of the defendants, which primarily means negligence by Dr Allfreyc, and, secondly, that that negligence did cause the terrible injuries which the plaintiff suffered, or at least that the defendants negligently failed to take some precaution which would have minimised the risk of those injuries.

  • c     Dr Allfrey was the doctor who administered the electro-convulsive therapy to the plaintiff on 23 August 1954

Before dealing with the law, I think it right that I should say this, that you have got to look at this case in its proper perspective. You have been told by one doctor that he had only seen one acetabular fracture in fifty thousand cases, involving a quarter of a million treatments. It is clear that the particular injury which produced these disastrous results in the plaintiff is one of extreme rarity. Another fact which I think it right to bear in mind is this, that whereas some years ago when a patient went into a mental institution afflicted with mental illness, he had very little hope of recovery—in most cases he could only expect to be carefully and kindly treated until in due course merciful death released him from his sufferings—today, according to the evidence which you have had before you, the position is entirely changed. Distinguished practitioners from some of the leading mental hospitals in the country have put before you what, I venture to think, are quite staggering figures of the number of patients now treated in these hospitals. Today, a man who enters a mental hospital suffering from a particular type of mental disorder has a real chance of recovery. You were told that that change was due almost entirely to the introduction of physical methods of treatment of mental illness, and of those physical methods the electro-convulsive therapy, which you have been considering during the last few days, is the most important. When you approach this case and consider whether it has been proved against the defendants that negligence was committed, you have to bear in mind the enormous benefits which are conferred on men and women by this form of treatment.

Another general comment that I would make is this: On the evidence it is clear, is it not, that the science of electro-convulsive therapy is a progressive science? Its development has been traced for you over the few years in which it has been used in this country. You may think on this evidence that, even today, there is no standard settled technique to which all competent doctors will agree. The doctors called before you have mentioned in turn different variants of the technique that they use. Some use restraining sheets, some use

[1957] 2 All ER 118 at 121

relaxant drugs, sme use manual control; but the final question about which you must make up your minds is this—whether Dr Allfrey, following on the practice that he had learned at Friern Hospital and following on the technique which had been shown to him by Dr De Bastarrechead, was negligent in failing to use relaxant drugs or, if he decided not to use relaxant drugs, that he was negligent in failing to exercise any manual control over the patient beyond merely arranging for his shoulders to be held, the chin supported, a gag used, and a pillow put under his back. No one suggests that there was any negligence in the diagnosis, or in the decision to use electro-convulsive thereapy. Furthermore, no one suggests that Dr Allfrey, or anyone at the hospital, was in any way indifferent to the care of their patients. The only question is really a question of professional skill.

  • d     Dr de Bastarrechea was a consultant psychiatrist attached to Friern Hospital

Before I turn to that, I must explain what in law we mean by “negligence”. In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. Counsel for the plaintiff was also right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis which is laid by counsel for the defendants is on this aspect of negligence: He submitted to you that the real question on which you have to make up your mind on each of the three major points to be considered e is whether the defendants, in acting in the way in which they did, were acting in accordance with a practice of competent respected professional opinion. Counsel for the defendants submitted that if you are satisfied that they were acting in accordance with a practice of a competent body of professional opinion, then it would be wrong for you to hold that negligence was established. I referred, before I started these observations, to a statement which is contained in a recent Scottish case, Hunter v Hanley ([1955] SLT 213 at p 217), which dealt with medical matters, where the Lord President (Lord Clyde) said this:

  • e     For the three main points relied on by the plaintiff, see p 122, letter f, post

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The

[1957] 2 All ER 118 at 122

true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”

If that statement of the true test is qualified by the words “in all the circumstances”, counsel for the plaintiff would not seek to say that that expression of opinion does not accord with English law. It is just a question of expression. I myself would prefer to put it this way: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I don't believe in anaesthetics. I don't believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century”. That clearly would be wrong.

Before I deal with the details of the case, it is right to say this, that it is not essential for you to decide which of two practices is the better practice, as long as you accept that what Dr Allfrey did was in accordance with a practice accepted by responsible persons; but if the result of the evidence is that you are satisfied that his practice is better than the practice spoken of on the other side, then it is a stronger case. Finally, bear this in mind, that you are now considering whether it was negligent for certain action to be taken in August, 1954, not in February, 1957; and in one of the well-known cases on this topic it has been said you must not look through 1957 spectacles at what happened in 1954.

The plaintiff's case primarily depends on three points. First, it is said that the defendants were negligent in failing to give to the plaintiff a warning of the risks involved in electro-convulsive therapy, so that he might have had a chance to decide whether he was going to take those risks or not. Secondly, it is said that they were negligent for failing to use any relaxant drugs which admittedly, if used, would have excluded, to all intents and purposes, the risk of fracture altogether. Thirdly—and this was, I think, the point on which counsel for the plaintiff laid the most emphasis—it is said that if relaxant drugs were not used, then at least some form of manual control beyond shoulder control, support of the chin, and placing a pillow under the back, should have been used.

Let us examine those three points. Bear in mind that your task is to see whether, in failing to take the action which it is said Dr Allfrey should have taken, he has fallen below a standard of practice recognised as proper by a competent reasonable body of opinion? First let me deal with the question of warning. There are two questions that you have to consider. First—does good medical practice require that a warning should be given to a patient before he is submitted to electro-convulsive therapy? Secondly—if a warning had been given, what difference would it have made? Are you satisfied that the plaintiff would have said: “You tell me what the risks are. I won't take those risks. I prefer not to have the treatment.”

The plaintiff relies, on this aspect of the case, on the evidence of Dr Randallf who, you may think, was a most distinguished psychiatrist, well qualified to express an opinion. He said regarding his practice as to giving a warning:

  • f     Dr Randall was consultant psychiatrist at St Thomas's Hospital and Charing Cross Hospital

“Having assessed the patient, it is then put to him that he might benefit from electro-convulsive therapy—some people call it electro-shock therapy, from electro-convulsive therapy—some people call it electro-shock therapy, but from the point of view of the patient that is not material because the

[1957] 2 All ER 118 at 123

patient is never aware either that he has a shock or a convulsion. Our practice at St. Thomas's Hospital, and my practice at Charing Cross Hospital is to provide the patient with a consent form.”

Dr Randall was asked whether he would warn the patient of the risks involved. He answered:

“Yes, I would indeed; in fact, we do. I make a practice always of saying to the patient that, using the technique of relaxation, he would be given an injection which would put him to sleep; that he would then be given another injection which would have the effect of paralysing all his muscles so that he could not move. I explain to the patient that if he were not given a relaxant drug his body would make some strong movements.”

Dr Randall was asked about the warning:

“Q.—If you feel very sincerely as a doctor that it is the only hope of relieving this illness, would you think it wise to discourage the patient by describing to him the possible risk of serious fractures? A.—I suppose that one has to form some opinion whether the patient is likely to be influenced by it. Depressed patients are often deluded about their bodily health, and nothing will alter their attitude. Taking that distortion of judgment into account, it is probable that to tell a patient that a risk of fracture exists will not materially alter has attitude to treatment, or his attitude to his illness.”

If it right that to tell a patient of the risk of fracture will not materially alter his attitude to treatment or his attitude to his illness, you may ask yourselves: Is there really any great value in giving this warning? In dealing with consent forms, Dr Randall says that these forms are provided so that the patient may be aware of the nature of the treatment, and also because it is the practice of the boards of governors of hospitals to provide them in case litigation ensues. Then Dr Randall's evidence continued:

“Q.—Does it help the patient in any way to be told all the risks which are involved in electro-convulsive therapy? A.—In the outcome I think that it does, because the patient takes the decision whether or not to have a treatment which might affect his whole future, and at that point he has the chance of deciding whether he will do it or whether he will not do it. Q.—Would you quarrel with a point of view as being wholly unsound if it was held that it was not beneficial to the patient to hear about that sort of thing? A.—I can believe that there would be circumstances in which it could be considered that it would not be beneficial to tell a patient of possible dangers and mishaps, subject to what I have already said.”

Then I put questions to him:

“Q.—Do you think that other competent people might take a contrary view to the one which you have expressed? A.—I think so, my Lord; yes, they might. Q.—Other competent people might think that it is better not to give any warning at all? A.—I think that that is going a little further than I could go generally, but I think that other people might consider it better not to give any warning at all.”

Counsel for the plaintiff quite rightly relies on answers which Dr Randall gave in re-examination:

“Q.—Do you think it ever right to give no warning of the risk to a person who can understand the warning? A.—I think that it is not right to give no warning of the risks to a patient who can understand the import of the warning.”

That is the high-water mark of the case for the plaintiff in favour of the view that it was negligent, in the sense which I have used, not to give a warning.

[1957] 2 All ER 118 at 124

Against that, you have to consider the evidence given by the defendants; first, by Dr de Bastarrechea, who says:

“I don't warn as to technique. I don't think it desirable to do so. It the patient asks me about the risks, I say that there is a very slight risk to life, less than in any surgical operation. Risk of fracture 1 in 10,,000. If they don't ask me anything, I don't say anything about the risk.”

Dr de Bastarrechea also said that in his view there was some danger in emphasising to a patient who ex hypothesi is mentally ill any dangers which in the doctor's view were minimal, because, if he does so, the patient may deprive himself by refusal of a remedy which is the only available hopeful remedy open to him. In cross-examination Dr de Bastarrechea agreed that when an operation is decided on, the patient should be carefully examined, but not that he should be warned of all the risks involved. He agreed that a man should be given the opportunity of deciding whether to take the risk, but it should be left to him to put questions; he should be told that there were some slight risks, but not told of the risks of catastrophe.

Dr Baker, consultant psychiatrist and deputy superintendent at Banstead Hospital, on the question of warning, said:

“I have to use my judgment. Giving the full details may drive a patient away. I would not say that a practitioner fell below the proper standard of medical practice in failing to point out all the risks involved.”

Dr Page, deputy medical officer at the Three Counties Hospital, Bedfordshire, said:

“Every patient has to be considered as an individual. I ask them if they know of the treatment. If they are unduly nervous, I don't say too much. If they ask me questions, I tell them the truth. The risk is small, but a serious thing when it happens; and it would be a great mistake if they refused to benefit from the treatment because of fear. In the case of a patient who is very depressed and suicidal, it is difficult to tell him of things which you know would make him worse.”

That is, in very summary form, the evidence on this point that you have to consider; and, having considered it, you have to make up your minds whether it has been proved to your satisfaction that when the defendants adopted the practice that they did (namely, the practice of saying very little and waiting for questions from the patient), they were falling below a proper standard of competent professional opinion on this question of whether or not it is right to warn. Members of the jury, thought it is a matter entirely for you, you may well think that when a doctor is dealing with a mentally sick man and has a strong belief that his only hope of cure is submission to electro-convulsive therapy, the doctor cannot be criticised if he does not stress the dangers, which he believes to be minimal, which are involved in that treatment.

The second point on the question of giving a warning is this: Suppose you come to the conclusion that proper practice requires some warning to be given, if a warning had been given, would it have made any difference? Only the plaintiff can answer that question, and he was never asked it. The plaintiff dealt with the point quite shortly when he said:

“On Aug. 16 I was examined by Dr. de Bastarrechea. He told me he recommended convulsive treatment. I knew what it meant; but Dr. de Bastarrechea did not give me any warning of any risk.”

The question what the plaintiff would have done if he had been told that there was a one in ten thousand risk was never put. Surely, members of the jury, it is mere speculation on your part to decide what the answer would have been, and you might well take the view that unless the plaintiff has satisfied you that he would not have taken the treatment if he had been warned, there is really nothing in this point.

[1957] 2 All ER 118 at 125

I now pass to what I venture to believe is the real point which you have to consider, or the two real points that you have to consider: Was it negligent, in the sense which I have indicated, not to use relaxant drugs? It is really a double point: Was it negligent not to use relaxant drugs and, if no relaxant drugs were used, was it negligent to fail to use manual control? But it is easier to take them separately. On the plaintiff's side, the argument is put this way, that if relaxant drugs had been used, it is common ground that the risk of fracture in the operation would, to all intents and purposes, be excluded; therefore it ought to be excluded. On the other hand, the defendants say that the risk of fracture without the use of relaxant drugs is minimal, although if a fracture does occur it may be very serious to the patient; but there is also, in the use of relaxant drugs, with an anaesthetic, another risk which has got to be balanced against the risk of fracture, and that is the mortality risk. The defendants say that, forming a judgment as best they can as medical men, balancing what they believe to be a remote risk of fracture on the one hand with what they believe to be a remote risk of mortality on the other hand, they, as a matter of professional skill, have decided not to use relaxant drugs except in cases where there is something special in the patient's condition which indicates that a relaxant drug should be used. For instance, if a man has had a recent fracture or is suffering from some arthritic condition, or, as I think that some witnesses mentioned, hernia. In those circumstances the defendants say that they would use relaxant drugs merely to avoid the greater risk of straight electro-convulsive therapy in those particular cases; but that they select the cases in which relaxant drugs are to be used by the exercise of their clinical judgment. That is the argument, and you have to make up your minds which you think is right.

Dr Randall gave evidence in support of the relaxant school of thought. He said that since he has used relaxant drugs, he has never had a fracture. He also told you that until 1953, the year before the plaintiff's accident, he only used relaxant drugs in selected cases, but in 1953 he started using them in every case. He agreed, however, that there was a large body of opinion which believed in giving electro-convulsive therapy straight and unmodified today. In the final questions that I put to Dr Randall at the end of his evidence this appeared:

“Q.—You told the jury, as I understand it, that although you are in favour of relaxants, there is a large body of opinion of competent persons, whose opinion you respect, who take a contrary view. A.—Yes. Q.—That being so, supposing in August, 1954, a practitioner using electro-convulsive therapy did not use relaxants, could you say that he was falling below the standard of care required of a competent practitioner merely by failing to use relaxants? A.—One could not say that. It is a known method of reducing, minimising, fractures, but that it was not used you could not say many other hospitals would not have taken the same attitude to it.”

I can summarise the evidence given for the defendants in this way. Dr de Bastarrechea says that he started to use relaxant drugs in selected cases as far back as 1948, and continues that practice today; but that he does not use them universally, for two reasons: because, viewing it fairly, he believes that the risk of a fracture with any serious results when electro-convulsive therapy is used straight, ie, without relaxant drugs, is very small, and because he is conscious that there is a mortality risk when relaxant drugs are used. He produced figures from Friern Hospital which show that six deaths were recorded since 1951, following on electro-convulsive therapy: Dr de Bastarrechea recalled from his own memory two further deaths in earlier years, making eight in all. Of those eight deaths, five at least were deaths in cases where relaxant drugs had been used, and one only was a death resulting from straight electro-convulsive therapy. Those figures are produced in support of the clinical impression which Dr De Bastarrechea

[1957] 2 All ER 118 at 126

had formed, that there was some risk of death in the use of relaxant drugs which he balanced against the risk of fracture without using them. He formed a judgment, on which he operated in Friern Hospital, that unless there were indications in favour of using relaxant drugs, it was better not to use them. Dr Allfrey found the same practice existing at Knole when he was first trained there. He told you that from 1946 to 1952 no relaxant drugs were used, but from 1949 onwards they began to be used in selected cases but were never used as a routine. When he arrived at Friern Hospital, he found this same practice, ie, that relaxant drugs were used only in selected cases. Counsel for the plaintiff urged strongly that you should come to the conclusion that Dr Allfrey realised he was wrong, because during the week following on the misfortune to the plaintiff he changed his practice. The record book shows that from 25 August to 30 August, the plaintiff's operation on 23 August having been the last without relaxants, Dr Allfrey always used relaxants. It was said that was because he realised that his previous practice was wrong. What Dr Allfrey himself said on that was this:

“Q.—Were there, in that next week, fourteen treatments? A.—Yes. Q.—In every case in the week succeeding this unfortunate occurrence every man you treated had a relaxant. A.—The reason was because [the plaintiff] had sustained a fracture and, until I had become certain in my own mind that there was nothing wrong with my technique, that there was no unknown factor which I had not taken into account, I thought that for the next week or two, at any rate until the return of Dr. de Bastarrechea when I could discuss it with him, I should take the added risk perhaps of using a relaxant in order to avoid further fractures.”

If that is true, surely there is nothing in the point that, having had this disaster, Dr Allfrey checks over his technique and wants to have an opportunity of discussing the matter with Dr de Bastarrechea.

Dr Marshall who gave his evidence with extreme moderation and extremely carefully, and who has the advantage of unique experience, being deputy superintendent of Netherne Hospital, said that he agreed that if relaxant drugs were properly given, there was really no risk of fracture, but that he believed that there were other more serious risks, including the risk to life, which should not be taken as a matter of routine or lightly, but only if there was a definite reason. Dr Page, from the Three Counties Hospital, you will remember, started to use relaxant drugs and then had a distressing experience when a medical colleague of his died on the operating table whilst under relaxant drugs, which did not predispose him towards the use of relaxant drugs, but his present practice, he told you, was to use a relaxant drug in selected cases where indicated. Dr Baker from Banstead Hospital said that relaxant drugs were given only when there was an indication in favour, and not otherwise, as, for instance, in the case of arthritis. On that body of evidence, is it really open to you to say that mere failure to give relaxant drugs is itself any evidence of negligence in the case of a medical man? There is a firm body of opinion against using relaxant drugs as a routine, and all the witnesses agree that there is this body of opinion, although one (Dr Randall) prefers to take the risk in using relaxant drugs and thus eliminate the risk of fractures.

We now come to the question of manual control which arises in this way: It is urged by the plaintiff that if one does not use relaxant drugs, which one knows will eliminate all risk of fracture, the least one can do is to exercise some form of manual control. Manual control was not used here, and this accident happened. The defendants say that there are two schools of thought. There is a school of thought, to which they adhere, which believes honestly, on reasonable grounds, that if one holds the patient down firmly, either with a restraining sheet or by a nurse lying over his body the risk of fracture is increased. Therefore, since the end of 1951, the defendants have adopted a new technique of leaving the patient's limbs free to move, but at the same time holding him down at the shoulders and seeing that a nurse stands on either side of the couch ready to catch him if he shows any sign of falling off.

Dr Randall was called by the plaintiff in support of his case on the question of using manual control. He was quite definitely of the opinion, a personal opinion which he said was shared by others, that some manual control was necessary. Indeed, that is not disputed by the defendants.

[His Lordship considered the evidence of Dr Randall on this point. Dr Randall had said that although there was a school of thought that restraint was unnecessary, he would not, in 1954, have given electro-convulsive therapy without using some form of restraint; he would not, at that time, have administered the treatment without precautions, ie, without using a relaxant drug or some form of manual control. Further he had thought that it would be unwise in 1954 to give the treatment without using such precautions, because in his experience fractures occurred when restraint was not used, but occurred to a very much less extent when it was used. Dr Randall had agreed that there was a competent body of medical opinion who believed that the more one restrained a patient, the more likely there were to be fractures. When asked if he thought that a doctor who had decided not to use relaxant drugs and who, also, had decided not to use any method of manual control because he held the view that it increased the risk of fracture, was falling below the level of skill of a competent practitioner, Dr Randall had said that his own view was that fractures were more common if restraint was not used, and he would think such a doctor was being foolhardy in not using restraint of some sort, and that he was using inadequate precautions; he would think that that doctor was falling below the ordinary standard of care required of a practitioner. His Lordship continued:] That is the view of a skilled person; you have to form your judgment how far Dr Randall was merely expressing a personal view in favour of the practice which he preferred, or to what extent (if at all) he was condemning the practice advocated by the defendants. But with him, as against him, you have to weigh the whole body of opinion represented by the witnesses called by the defendants. Dr de Bastarrechea was quite definite in his view that since he changed over to the use of no manual control after 1951, a decision which he took as a matter of clinical judgment, he got the impression that the fracture risk at any rate had not increased. [His Lordship reviewed the evidence afforded by a consideration of figures from the casualty book of Friern Hospital, and referred to the evidence of Dr Marshall to whom the figures were put, concluding that Dr Marshall did not seem to take the view that there was anything in that list which suggested that the practice adopted at Friern Hospital was open to criticism. His Lordship continued:]

Dr Allfrey also dealt with this matter. I have not said anything about Dr Allfrey in detail, though he is, you have got to bear in mind, primarily the man under attack, for it was during his operation that the disaster occurred. You have got to form your judgment of Dr Allfrey, make up your minds whether you think that he was a careful practitioner interested in his art, giving thought to the different problems, or whether he was a man who was quite content just to follow the swim. You may recall that on quite a number of occasions in the course of his evidence he gave instances, where he had applied his inquiring mind to the problem and had come to a conclusion. On the use of restraint, he told you that during his training he knew that there was a school of thought that favoured restraint, but that he got the impression that the general view was against it. He recalls how he was taught that there was a greater danger of fracture if two ends of a rigid member like a stick were held firm than if one was left swinging or both were left swinging, and that persuaded him that there was something in the view that restraint should not be used. At Knole Hospital he adopted under tuition (and, as he got older, on his own responsibility) the practice of leaving the limbs free to move, merely holding down the shoulders.

When he came to Friern Hospital he found the same practice was being carried out there by Dr de Bastarrechea. The question about which you have to make up your minds is whether Dr Allfrey, in following that practice, is doing something which no competent medical practitioner using due care would do, or whether, on the other hand, he is acting in accordance with a perfectly well recognised school of thought. Dr Marshall at Netherne Hospital adopts the same practice. Dr Baker at Banstead Hospital adopts the same practice. It is true, and in fact interesting as showing the diversity of practice, that Dr Page at the Three Counties Hospital, adopts a modification of that practice, inasmuch as he prefers to carry out the treatment in bed, with the patient controlled to some extent by the blanket, sheets and counterpane. That may be of interest to you as showing the diversity of practice; but it would not be right to take that as a condemnation of the practice adopted by the defendants.

That, members of the jury, is all that I have to say on the question of liability; but, before I leave this question altogether, I think it right to remind you of, or refer you to, what I venture to say were some very wise words used recently in the Court of Appeal in Roe v Ministry of Health ([1954] 2 All ER 131), a case not dissimilar to this. It was a most tragic case where two men in the prime of life were submitted to an anaesthetic for, in both cases, some trivial condition requiring operative treatment and, as the result of a mishap in the anaesthetic, both men came off the operating table paralysed. After a very long inquiry, the trial judge came to the conclusion that it had not been established that, by the standard of care and knowledge operating at the time, the anaesthetist was negligent. The Court of Appeal took the same view, and one finds this in the judgment of Denning LJ (ibid, at p 137):

“If the anaesthetists had foreseen that the ampoules might get cracked with cracks that could not be detected on inspection they would, no doubt, have dyed the phenol a deep blue; and this would have exposed the contamination. But I do not think their failure to foresee this was negligence. It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here.”

Then again (ibid, at p 139):

“One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”

That concludes what I wish to say on the question of liability.

[His Lordship then directed the jury on the question of damages. The jury, having retired and considered their verdict, found that the defendants were not negligent.]

Judgment for the defendants.

Solicitors: Pennington & Son (for the plaintiff); J Tickle & Co (for the defendants).

Wendy Shockett Barrister.

Montgomery v Lanarkshire Health Board (General Medical Council intervening)

[2015] UKSC 11

 

SUPREME COURT


LORD NEUBERGER P, LADY HALE DP, LORD KERR, LORD CLARKE, LORD WILSON, LORD REED AND LORD HODGE SCJJ
22, 23 JULY, 11 MARCH 2015

  • Medical practitioner – Negligence – Test of liability – Risk of misfortune inherent in treatment proposed by doctor – Doctor's duty to warn of inherent risk of misfortune – High risk pregnancy and delivery due to small stature of mother with diabetes – Failure of doctor to advise on risks of vaginal delivery and possible need for caesarean section – Baby sustaining serious birth injuries during vaginal delivery – Whether negligence where failure to warn of risks accepted as proper by responsible body of medical opinion.

M sought damages on behalf of her son who had suffered severe and continuing injuries as a result of shoulder dystocia at the time of his birth. She argued that his injuries had been caused by the failure of a doctor employed by the health board to advise her of the risk of shoulder dystocia, and of the possibility of delivery by elective caesarean section, for which she would have opted had she been properly advised. Two separate grounds for negligence were advanced. The first was that she should, during her antenatal care, have been advised about the risk that as the baby was larger than average, his shoulders would not pass easily through her pelvis during a vaginal delivery, (shoulder dystocia), and that delivery by elective caesarean section should be considered. The second concerned the management of her labour, and the argument that there had been negligence in the failure to perform a caesarean section when the cardiotograph traces indicated a cause for concern. She was considered to be at high risk during pregnancy and delivery because she was small in stature and diabetic. Although M had been informed that she was carrying a larger than usual baby, and had raised concerns about vaginal delivery, the doctor failed to tell her that a diabetic woman had a 9–10% risk of shoulder dystocia during a vaginal delivery. The doctor had taken the view that the risk of this was very small and, that if women were informed about the risks, most would ask for a caesarean section, which she thought was not in their best interests. Rejecting the claim, the Lord Ordinary held that as M had not asked about any specific risks of vaginal delivery, failure by the doctor to warn her of the risks involved did not amount to a breach of her duty of care. On the basis of the expert evidence, the Lord Ordinary had taken the view that the omission was accepted as proper by a responsible body of medical opinion; and even if she had been advised about the risk of serious harm to the baby as a result of shoulder dystocia, M would not have opted to have a caesarean section. M's reclaiming motion was refused by an Extra Division of the Inner House of the Court of Session. She appealed to the Supreme Court.

[2015] 2 All ER 1031 at 1032

Held – An adult person of sound mind was entitled to decide which treatment to undergo, and her consent should be obtained before any treatment was carried out. A doctor had a duty to take reasonable care to ensure that the patient was informed about any material risks involved in the recommended treatment, and of any reasonable alternative treatments. The test of materiality was whether, in the circumstances, a reasonable person in the same position as the patient would be likely to regard a particular risk as significant, or the doctor was or should reasonably be aware that the patient would be likely to attach significance to it, and it was impossible to reduce to percentage terms the assessment of the materiality of risks. The doctor was entitled to withhold from the patient information as to a risk if he reasonably considered that its disclosure would be seriously detrimental to the patient's health. The 'therapeutic exception' was, however, a limited exception to the general principle, and it did not allow doctors to prevent their patients from taking an informed decision. It was the doctor's responsibility to explain in comprehensible terms to the patient why one of the available treatment options was medically preferable to the others, after taking care to ensure that the patient was aware of the considerations for and against each of them. The doctor was also excused from conferring with the patient in circumstances of necessity, eg where the patient required treatment urgently but was unconscious or otherwise unable to make a decision. In the instant case, the doctor should have advised M of the risk of shoulder dystocia in the course of a vaginal delivery and should have discussed with her the alternative of an elective caesarean section. On the evidence, there was no basis for the view that M, if she had been appropriately advised, would not have opted to have a vaginal delivery.

Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 not followed.

Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 applied.

Notes

For the standard of care applicable to those professing a particular skill, see 78 Halsbury's Laws (5th edn) (2010) para 23.

Cases referred to

Airedale NHS Trust v Bland [1993] 1 All ER 821, [1993] AC 789, [1993] 2 WLR 316, HL.

Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB), (2008) 104 BMLR 168.

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.

Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, [1998] AC 232, [1997] 3 WLR 1151, HL.

Chester v Afshar [2004] UKHL 41, [2004] 4 All ER 587, [2005] 1 AC 134, [2004] 3 WLR 927.

Donoghue v Stevenson [1932] AC 562, [1932] All ER Rep 1, HL.

Glass v UK (2004) 77 BMLR 120, ECt HR.

Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600.

Higgins v J & C M Smith (Whiteinch) Ltd 1990 SC (HL) 63, HL.

Hunter v Hanley 1955 SC 200, Ct Sess.

Jones v North West Strategic Health Authority [2010] EWHC 178 (QB), [2010] Med LR 90.

[2015] 2 All ER 1031 at 1033

Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635, [1984] 1 WLR 634, HL.

McColl v Strathclyde Regional Council 1983 SC 225, Ct Sess.

McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477.

Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118, CA.

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2003] 4 All ER 987, [2004] 1 AC 309, [2003] 3 WLR 1091.

Reibl v Hughes [1980] 2 SCR 880, 114 DLR (3d) 1, Can SC.

Rogers v Whitaker (1992) 16 BMLR 148, 175 CLR 479, Aus HC.

Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434, Aus HC.

S v S; W v Official Solicitor [1972] AC 24, [1970] 3 All ER 107, [1970] 3 WLR 366, HL.

St George's Healthcare NHS Trust v S [1998] 3 All ER 673, [1999] Fam 26, [1998] 3 WLR 936, CA.

Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643, [1985] AC 871, [1985] 2 WLR 480, HL.

Thomas v Thomas [1947] 1 All ER 582, [1947] AC 484, HL.

Tysiac v Poland (2007) 22 BHRC 155, ECt HR.

Wyatt v Curtis [2003] EWCA Civ 1779, [2003] All ER (D) 493 (Oct).

Appeal

Nadine Montgomery, the pursuer, appealed to the Supreme Court from the decision of an Extra Division of the Inner House of the Court of Session (Lord Eassie, Lord Hardie and Lord Emslie) on 23 January 2013 ([2013] CSIH 3, 2013 SC 245), refusing her reclaiming motion and upholding the decision of Lord Bannatyne, the Lord Ordinary, on 30 July 2010 ([2010] CSOH 104), rejecting her claim for damages on behalf of her son for injuries sustained at the time of his birth on 1 October 1999, allegedly as a result of the negligence of Dr Dina McLellan, a consultant obstetrician and gynaecologist employed by the defender, Lanarkshire Health Board. The General Medical Council joined the proceedings as intervener. The facts of the case are set out in the judgment of Lord Kerr and Lord Reed.

James Badenoch QC, Colin MacAulay QC and Lauren Sutherland (instructed by Balfour+Manson LLP) for the pursuer.

Rory Anderson QC and Neil Mackenzie (instructed by NHS National Services Scotland Central Legal Office) for the health board.

Andrew Smith QC (instructed by GMC Legal) for the intervener.


 

Judgment was reserved.

11 March 2015. The following judgments were delivered.
LORD KERR and LORD REED

(with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hodge agreed).

Introduction

[1] Nadine Montgomery gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during the delivery, the baby was born with severe disabilities. In these proceedings Mrs Montgomery seeks damages on behalf of her son for the injuries which he sustained. She attributes those injuries to negligence on the part of Dr Dina

[2015] 2 All ER 1031 at 1034

McLellan, a consultant obstetrician and gynaecologist employed by Lanarkshire Health Board, who was responsible for Mrs Montgomery's care during her pregnancy and labour. She also delivered the baby.

[2] Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs Montgomery. The first concerned her ante-natal care. It was contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of the baby's shoulders to pass through the pelvis) which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section. The second branch of the case concerned the management of labour. It was contended that Dr McLellan had negligently failed to perform a caesarean section in response to abnormalities indicated by cardiotocograph (CTG) traces.

[3] The Lord Ordinary, Lord Bannatyne, rejected both grounds of fault ([2010] CSOH 104). In relation to the first ground, he based his decision primarily on expert evidence of medical practice, following the approach laid down by the majority in Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643, [1985] AC 871. He also concluded that, even if Mrs Montgomery had been given advice about the risk of serious harm to her baby as a consequence of shoulder dystocia, it would have made no difference in any event, since she would not have elected to have her baby delivered by caesarean section. That decision was upheld by the Extra Division, Inner House (Lord Eassie, Lord Hardie and Lord Emslie, [2013] CSIH 3, 2013 SC 245).

[4] The appeal to this court has focused on the first ground of fault. The court has been invited to depart from the decision of the House of Lords in Sidaway and to re-consider the duty of a doctor towards a patient in relation to advice about treatment. The court has also been invited to reverse the findings of the Lord Ordinary in relation to causation, either on the basis that his treatment of the evidence was plainly wrong, or on the basis that, instead of applying a conventional test of 'but for' causation, he should instead have applied the approach adopted in the case of Chester v Afshar [2004] UKHL 41, [2004] 4 All ER 587, [2005] 1 AC 134.

[5] Before considering those issues, we shall explain in greater detail the relevant facts and the approach adopted by the courts below.

The facts

[6] Mrs Montgomery studied molecular biology at Glasgow University and graduated with a BSc. She then worked for a pharmaceutical company as a hospital specialist. She was described by the Lord Ordinary as 'a clearly highly intelligent person'. Her mother and sister are both general medical practitioners.

[7] In 1999 Mrs Montgomery was expecting her first baby. She is of small stature, being just over five feet in height. She suffers from insulin dependent diabetes mellitus. Women suffering from diabetes are likely to have babies that are larger than normal, and there can be a particular concentration of weight on the babies' shoulders. Because of her diabetes, Mrs Montgomery's was regarded as a high risk pregnancy requiring intensive monitoring. She therefore attended the combined obstetric and diabetic clinic at Bellshill Maternity Hospital, under the care of Dr McLellan, throughout her pregnancy.

[8] The widest part of a baby's body is usually the head. If the head successfully descends through the birth canal, in a normal birth the rest of the body will descend uneventfully. Since the widest part of the body of a baby whose mother is diabetic may be the shoulders the head may descend but the

[2015] 2 All ER 1031 at 1035

shoulders can be too wide to pass through the mother's pelvis without medical intervention. This phenomenon, known as shoulder dystocia, is the prime concern in diabetic pregnancies which proceed to labour. It was described by Dr Philip Owen, an expert witness who gave evidence on behalf of the Board, as 'a major obstetric emergency associated with a short and long term neonatal and maternal morbidity [and] an associated neonatal mortality'.

[9] That evidence is consistent with guidance issued by the Royal College of Obstetricians and Gynaecologists, which states that there can be a high perinatal mortality and morbidity associated with the condition, even when it is managed appropriately. Maternal morbidity is also increased: in 11% of cases of shoulder dystocia there is postpartum haemorrhage, and in 3.8% fourth degree perineal tears. The guidance advises that help should be summoned immediately when shoulder dystocia occurs. When the mother is in hospital this should include assistance from midwives, an obstetrician, a paediatric resuscitation team and an anaesthetist.

[10] According to the evidence in this case, about 70% of cases of shoulder dystocia can be resolved by what is known as a 'McRoberts'' manoeuvre. This involves two midwives or nurses taking hold of the mother's legs and forcing her knees up towards her shoulders, so as to widen the pelvic inlet by means of hyperflexion. An attempt can also be made to manoeuvre the baby by suprapubic pressure. This procedure involves the doctor making a fist with both hands and applying pressure above the mother's pubis, in order to dislodge the baby's shoulder and push the baby down into the pelvis. Another procedure which may be attempted is a 'Zavanelli' manoeuvre. This involves pushing the baby's head back into the birth canal, to the uterus, so as to be able to perform an emergency caesarean section. Another possible procedure is a symphysiotomy. This is a surgical procedure which involves cutting through the pubic symphysis (the joint uniting the pubic bones), so as to allow the two halves of the pelvis to be separated.

[11] According to Dr McLellan's evidence, in some cases the mother may be entirely unaware that shoulder dystocia has occurred. It is clear, however, that when shoulder dystocia happens and the mother knows of it, dealing with it is, at least, an unpleasant and frightening experience for her. It also gives rise to a variety of risks to her health.

[12] Shoulder dystocia also presents risks to the baby. The physical manoeuvres and manipulations required to free the baby can cause it to suffer a broken shoulder or an avulsion of the brachial plexus – the nerve roots which connect the baby's arm to the spinal cord. An injury of the latter type may be transient or it may, as in the present case, result in permanent disability, leaving the child with a useless arm. The risk of a brachial plexus injury, in cases of shoulder dystocia involving diabetic mothers, is about 0.2%. In a very small percentage of cases of shoulder dystocia, the umbilical cord becomes trapped against the mother's pelvis. If, in consequence, the cord becomes occluded, this can cause the baby to suffer from prolonged hypoxia, resulting in cerebral palsy or death. The risk of this happening is less than 0.1%.

[13] Mrs Montgomery was told that she was having a larger than usual baby. But she was not told about the risks of her experiencing mechanical problems during labour. In particular she was not told about the risk of shoulder dystocia. It is agreed that that risk was 9–10% in the case of diabetic mothers. Unsurprisingly, Dr McLellan accepted that this was a high risk. But, despite the risk, she said that her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia. She explained that

[2015] 2 All ER 1031 at 1036

this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, 'most women will actually say, “I'd rather have a caesarean section”'. She went on to say that: 'if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it's not in the maternal interests for women to have caesarean sections.'

[14] During her fortnightly attendances at the clinic, Mrs Montgomery underwent ultrasound examinations to assess foetal size and growth. The final ultrasound examination was on 15 September 1999, at 36 weeks gestation. Dr McLellan decided that Mrs Montgomery should not have a further ultrasound examination at 38 weeks, because she felt that Mrs Montgomery was becoming anxious as a result of the information revealed by the scans about the size of her baby. That sense of anxiety related to her ability to deliver the baby vaginally.

[15] Based on the 36 weeks ultrasound, Dr McLellan estimated that the foetal weight at birth would be 3.9 kilograms. She made that estimate on the assumption that the baby would be born at 38 weeks. This is important because Dr McLellan gave evidence that, if she had thought that the baby's weight was likely to be greater than 4 kg, she would have offered Mrs Montgomery a caesarean section. In keeping with general practice Dr McLellan would customarily offer a caesarean section to diabetic mothers where the estimated birth weight is 4.5 kg. She decided to reduce that threshold to 4 kg in Mrs Montgomery's case because of her small stature.

[16] As Dr McLellan was aware, estimating birth weight by ultrasound has a margin of error of plus or minus 10%. But she decided to leave this out of account, stating that 'if you do that you would be sectioning virtually all diabetics'. By the time of the 36-week examination, Dr McLellan had already made arrangements for Mrs Montgomery's labour to be induced at 38 weeks and 5 days. She accepted in evidence that she should have estimated the baby's birth weight as at 38 weeks and 5 days, rather than 38 weeks, and that the estimated birth weight would then have been over 4 kg which was, of course, beyond the threshold that she herself had set. In the event, the baby was born on the planned date and weighed 4.25 kg.

[17] At the 36-week appointment, Dr McLellan noted that Mrs Montgomery was 'worried about [the] size of [the] baby'. In her evidence, she accepted that Mrs Montgomery had expressed concern at that appointment about the size of the foetus and about the risk that the baby might be too big to be delivered vaginally. Dr McLellan also accepted that it was possible that Mrs Montgomery had expressed similar concerns previously. Certainly, she said, such concerns had been mentioned more than once. She stated that Mrs Montgomery had not asked her 'specifically about exact risks'. Had Mrs Montgomery done so, Dr McLellan said that she would have advised her about the risk of shoulder dystocia, and also about the risk of cephalopelvic disproportion (the baby's head becoming stuck). In the absence of such specific questioning, Dr McLellan had not mentioned the risk of shoulder dystocia, because, as we have already observed, it was her view that the risk of serious injury to the baby was very slight. In accordance with her practice in cases where she felt (in her words) that it was 'fair to allow somebody to deliver vaginally', Dr McLellan advised Mrs Montgomery that she would be able to deliver vaginally, and that if difficulties were encountered during labour then recourse

[2015] 2 All ER 1031 at 1037

would be had to a caesarean section. Mrs Montgomery accepted that advice. But if she had requested an elective caesarean section, she would have been given one.

[18] Mrs Montgomery said in evidence that if she had been told of the risk of shoulder dystocia, she would have wanted Dr McLellan to explain to her what it meant and what the possible risks of the outcomes could be. If she had considered that it was a significant risk to her (and, in light of what she had subsequently learned, she would have assessed it as such) she would have asked the doctor to perform a caesarean section.

[19] As we have explained, Dr McLellan gave evidence that diabetic patients who had been advised of the risk of shoulder dystocia would invariably choose the alternative of delivery by caesarean section. She also gave evidence that Mrs Montgomery in particular would have made such an election:

'since I felt the risk of her baby having a significant enough shoulder dystocia to cause even a nerve palsy or severe hypoxic damage to the baby was low I didn't raise it with her, and had I raised it with her then yes, she would have no doubt requested a caesarean section, as would any diabetic today.'

[20] Mrs Montgomery's labour was induced by the administration of hormones, as Dr McLellan had planned. After several hours, labour became arrested. The strength of the contractions was then augmented by the administration of further hormones over a further period of several hours, so as to overcome whatever was delaying progress towards vaginal delivery. When the baby's head nevertheless failed to descend naturally, Dr McLellan used forceps. At 5.45 pm the baby's shoulder became impacted at a point when half of his head was outside the perineum.

[21] Dr McLellan had never dealt with that situation before. She described it as very stressful for Mrs Montgomery and for all the staff in theatre, including herself. Mr Peter Stewart, an expert witness led in support of Mrs Montgomery's case, described the situation as every obstetrician's nightmare. An anaesthetist gave Mrs Montgomery a general anaesthetic so as to enable the Zavanelli manoeuvre (ie pushing the baby back into the uterus, in order to perform an emergency caesarean section) to be attempted. Dr McLellan decided however that she had no other option but to try to complete the delivery. She pulled the baby's head with 'significant traction' to complete the delivery of the head. In order to release the shoulders, she attempted to perform a symphysiotomy, and succeeded to some extent in cutting through the joint. No scalpels with fixed blades were available, however, and the blades she used became detached before the division of the joint had been completed. Eventually, 'with just a huge adrenalin surge', Dr McLellan succeeded in pulling the baby free, and delivery was achieved at 5.57 pm.

[22] During the 12 minutes between the baby's head appearing and the delivery, the umbilical cord was completely or partially occluded, depriving him of oxygen. After his birth, he was diagnosed as suffering from cerebral palsy of a dyskinetic type, which had been caused by the deprivation of oxygen. He also suffered a brachial plexus injury resulting in Erb's palsy (ie paralysis of the arm). All four of his limbs are affected by the cerebral palsy. If Mrs Montgomery had had an elective caesarean section her son would have been born uninjured.

[2015] 2 All ER 1031 at 1038

[23] Mr Stewart gave evidence that Dr McLellan's failure to inform Mrs Montgomery of the risk of shoulder dystocia was contrary to proper medical practice, whether or not Mrs Montgomery had asked about the risks associated with vaginal delivery. In cross-examination, however, counsel for the defender put the following question to him:

'And if Dr McLellan had said your baby appears to be on the 95th centile or whatever, so it's borderline large, it's the top end of the normal size, its largish … We know that you are diabetic. We know you are whatever height you are, we've estimated the size as best we can all the way through, there are risks but I don't think the baby is so big that vaginal delivery is beyond you and I think we should try for vaginal delivery and if anything comes up we will go to caesarean section. Now if that was the general tenor of the discussion, could you criticise that? I know it's very vague and it's very difficult because it's another hypothesis, Mr Stewart and I appreciate that but yes I would … are you able to answer that question?'

[24] Mr Stewart replied that he was 'able to go along with that, with the caveat that you would then say to the patient, “Are you happy with that decision?” ' Professor James Neilson, another expert witness led in support of Mrs Montgomery's case, gave evidence that, if she expressed concerns about the size of her baby, then it was proper practice to discuss the potential problems that could arise because of the baby's size. That discussion would have included the risk of shoulder dystocia, and the option of an elective caesarean section.

[25] Dr Owen gave evidence that what had been said by Dr McLellan was an adequate response to Mrs Montgomery's expressions of concern about the size of her baby and her ability to deliver vaginally. Another expert witness led on behalf of the Board, Dr Gerald Mason, considered that it was reasonable not to have discussed shoulder dystocia with Mrs Montgomery, as the risks of a serious outcome for the baby were so small. Like Dr McLellan, he considered that, if doctors were to warn women at risk of shoulder dystocia, 'you would actually make most women simply request caesarean section'. He accepted however that if a patient asked about risks then the doctor was bound to respond.

The judgments of the courts below

[26] The Lord Ordinary was invited by counsel to accept that Mrs Montgomery should have been informed of the risk of shoulder dystocia if vaginal delivery was proposed and that she should have been advised about the alternative of delivery by caesarean section. He rejected that contention. Following the approach in Sidaway, he decided that whether a doctor's omission to warn a patient of inherent risks of proposed treatment constituted a breach of the duty of care was normally to be determined by the application of the test in Hunter v Hanley 1955 SC 200 at 206 or the equivalent Bolam test (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 122, [1957] 1 WLR 582 at 587). It therefore depended on whether the omission was accepted as proper by a responsible body of medical opinion. In light of the expert evidence given on behalf of the Board (and Dr Stewart's evidence in cross-examination), which could not be rejected as incapable of standing up to rational analysis (cf Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 at 777–779, [1998] AC 232 at 241–243), that test was not met.

[2015] 2 All ER 1031 at 1039

[27] The Lord Ordinary accepted, following the speech of Lord Bridge in Sidaway, that there might be circumstances, where the proposed treatment involved a substantial risk of grave adverse consequences, in which a judge could conclude, notwithstanding any practice to the contrary, that a patient's right to decide whether to consent to the treatment was so obvious that no prudent medical practitioner could fail to warn of the risk, save in an emergency or where there was some other cogent clinical reason for non-disclosure. The Lord Ordinary was referred to the way in which the matter had been put by Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 at 124: was there a significant risk which would affect the judgment of a reasonable patient? That did not, in the Lord Ordinary's judgment, alter the test in Sidaway because he considered that, in order to be significant, a risk must be a substantial risk of grave adverse consequences.

[28] The circumstances of the present case did not in his view fall within the scope of that exception. Although there was a significant risk of shoulder dystocia, that did not in itself require a warning, since 'in the vast majority of … cases … shoulder dystocia was dealt with by simple procedures and the chance of a severe injury to the baby was tiny'. The Lord Ordinary declined to follow the approach adopted in Jones v North West Strategic Health Authority [2010] EWHC 178 (QB), [2010] Med LR 90, a case on similar facts where it had been held that the risk of shoulder dystocia was in itself sufficiently serious for the expectant mother to be entitled to be informed.

[29] The Lord Ordinary also accepted, again following the speech of Lord Bridge in Sidaway, that a doctor must, when questioned specifically by a patient about risks involved in a particular treatment proposed, answer truthfully and as fully as the questioner requires. He held however that there had been no breach of that duty. He rejected Mrs Montgomery's evidence that she had asked Dr McLellan about the risks inherent in vaginal delivery and about other options. He accepted that Mrs Montgomery had raised concerns with Dr McLellan about her ability to deliver such a large baby vaginally: indeed, that was not in dispute. But the expression of such concerns did not in his opinion result in any duty to explain the risks involved. In order for a duty to explain the risks to arise, Mrs Montgomery would have had to have 'raised questions of specific risks' involved in vaginal delivery.

[30] In her appeal to the Inner House of the Court of Session, Mrs Montgomery again argued that she ought to have been informed of the risk of shoulder dystocia, and should have been offered and advised about the alternative of delivery by caesarean section. The reclaiming motion was refused for reasons set out in an opinion delivered by Lord Eassie.

[31] Lord Eassie rejected the argument that there had been, in recent judicial authority (in particular, Pearce v United Bristol Healthcare NHS Trust), a departure from the approach adopted in Sidaway, so as to require a medical practitioner to inform the patient of any significant risk which would affect the judgment of a reasonable patient. The decision in Sidaway was understood by Lord Eassie as normally requiring only of a doctor, in advising a patient of risks, to follow the practice of a responsible body of medical practitioners. He accepted, in the light of the opinion of Lord Bridge in Sidaway, and the later case of Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, [1998] AC 232, that there might be exceptional cases in which the court should not regard as determinative medical practice as to what should be conveyed to the patient where the risk was so obviously substantial that the court could say that no

[2015] 2 All ER 1031 at 1040

practitioner could reasonably omit to warn the patient. This was not such a case, however. The relevant risk was not the possibility of shoulder dystocia occurring but the much smaller risk of a grave adverse outcome.

[32] The second limb of Mrs Montgomery's case in relation to the advice that she should have received was founded, as we have explained, on the observation of Lord Bridge in Sidaway that when questioned specifically by a patient about risks, it is the doctor's duty to answer truthfully and as fully as the questioner requires. The Lord Ordinary had rejected Mrs Montgomery's evidence that she had repeatedly asked Dr McLellan about the risks of vaginal delivery. But it was argued on her behalf that her undisputed expression to her doctor of concerns about the size of her baby, and her ability to deliver the baby vaginally, was in substance a request for information about the risks involved in her delivering the baby vaginally, and was equally apt to trigger a duty to advise of the risks.

[33] This argument was also rejected. Lord Eassie stated that 'communication of general anxieties or concerns, in a manner which does not clearly call for the full and honest disclosure of factual information in reply, falls short of qualifying under Lord Bridge's observation'. Mrs Montgomery's concerns had been of a general nature only. Unlike specific questioning, general concerns set no obvious parameters for a required response: 'Too much in the way of information … may only serve to confuse or alarm the patient, and it is therefore very much a question for the experienced practitioner to decide, in accordance with normal and proper practice, where the line should be drawn in a given case.'

[34] Since the Lord Ordinary and the Extra Division both found that Dr McLellan owed no duty to Mrs Montgomery to advise her of any risk associated with vaginal delivery, the question of how Mrs Montgomery might have reacted, if she had been advised of the risks, did not arise. Both the Lord Ordinary and the Extra Division nevertheless dealt with the matter. The relevant question, as they saw it, was whether Mrs Montgomery had established that, had she been advised of the very small risks of grave adverse consequences arising from shoulder dystocia, she would have chosen to have a caesarean section and thus avoided the injury to the baby.

[35] The Lord Ordinary described the evidence in relation to this matter as being in fairly short compass, and said that 'it is as follows'. He then quoted the passage in Mrs Montgomery's evidence which we have narrated at para [18]. Mrs Montgomery was not challenged on this evidence. Notwithstanding that, the Lord Ordinary did not accept her evidence. He considered that because (1) the risk of a grave adverse outcome from shoulder dystocia was 'minimal', (2) the risks of an elective caesarean section would also have been explained to her, (3) Dr McLellan would have continued to advocate a vaginal delivery, and (4) Mrs Montgomery said in evidence that she was 'not arrogant enough to demand a caesarean section' when it had not been offered to her, she would not have elected to have that procedure, even if she knew of the risks of shoulder dystocia.

[36] Before the Extra Division, counsel pointed out that the Lord Ordinary had purported to narrate the entire evidence bearing on this issue, but had omitted any reference to the evidence given by Dr McLellan that had she raised the risk of shoulder dystocia with Mrs Montgomery, 'then yes, she would have no doubt requested a caesarean section, as would any diabetic today'. Lord Eassie considered however that this evidence was given in the context of a discussion about 'professional practice in the matter of advising of the risks of shoulder dystocia, rather than a focused consideration of the likely attitude and response of the pursuer as a particular individual'. The fact that the Lord Ordinary did not refer to this evidence did not, in Lord Eassie's view, betoken a failure to take into account material and significant evidence. As Lord Simonds had observed in Thomas v Thomas [1947] AC 484 at 492, an appellate court was 'entitled and bound, unless there is compelling reason to the contrary, to assume that [the trial judge] has taken the whole of the evidence into his consideration'.

[37] An alternative argument was advanced on behalf of Mrs Montgomery on the issue of causation. It was submitted that the response which the patient would have given to advice about risks, had she received it, should not be determinative. It was sufficient that a risk of grave adverse consequences, of which there was ex hypothesi a duty to advise, had in fact materialised. This submission was based on the House of Lords decision in Chester v Afshar. That was a case where the patient had undergone elective surgery which carried a small risk of cauda equina syndrome, about which she had not been advised. She developed the condition. The judge at first instance found that, had the claimant been advised of the risk, as she ought to have been, she would have sought advice on alternatives and the operation would not have taken place when it did. She might have agreed to surgery at a future date, in which event the operation would have involved the same small risk of cauda equina syndrome. The House of Lords held by a majority that causation was established.

[38] The Lord Ordinary declined to apply the approach adopted in Chester v Afshar, on the basis that the instant case was materially different on its facts. Lord Eassie also distinguished Chester from the present case. The birth of a baby could not be deferred: one was 'not in the area of truly elective surgery'. Moreover, there was a specific, positive finding that Mrs Montgomery would not have elected to undergo a caesarean section if she had been warned about the risk of shoulder dystocia.

Sidaway

[39] In Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 at 638, [1984] 1 WLR 634 at 638, the House of Lords approved the dictum of Lord President Clyde in Hunter v Hanley 1955 SC 200 at 205 that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether she has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Lord Scarman, in a speech with which the other members of the House agreed, stated:

'A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper.'

[40] In that part of his speech, Lord Scarman followed the approach adopted in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957]

[2015] 2 All ER 1031 at 1042

1 WLR 582, a case concerned with advice as well as with diagnosis and treatment, where McNair J directed the jury that a doctor was not guilty of negligence if she had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art. The question whether the same approach should be applied (as it had been, in Bolam itself) in relation to a failure to advise a patient of risks involved in treatment was considered by the House of Lords in Sidaway v Bethlem Royal Hospital Governors which was, of course, decided in 1985, two years after the Maynard decision.

[41] In Sidaway's case this question was approached by the members of the House in different ways, but with a measure of overlap. At one end of the spectrum was Lord Diplock, who considered that any alleged breach of a doctor's duty of care towards his patient, whether it related to diagnosis, treatment or advice, should be determined by applying the Bolam test ([1985] 1 All ER 643 at 657, 659, [1985] AC 871 at 893, 895):

'The merit of the Bolam test is that the criterion of the duty of care owed by a doctor to his patient is whether he has acted in accordance with a practice accepted as proper by a body of responsible and skilled medical opinion … To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.'

[42] Lord Diplock provided some reassurance to members of the judiciary (1985] 1 All ER 643 at 659, [1985] AC 871 at 895):

'But, when it comes to warning about risks, the kind of training and experience that a judge will have undergone at the Bar makes it natural for him to say (correctly) it is my right to decide whether any particular thing is done to my body, and I want to be fully informed of any risks there may be involved of which I am not already aware from my general knowledge as a highly educated man of experience, so that I may form my own judgment whether to refuse the advised treatment or not. No doubt, if the patient in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know …'

There was on the other hand no obligation to provide patients with unsolicited information about risks (1985] 1 All ER 643 at 659, [1985] AC 871 at 895):

'The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo.'

[43] At the other end of the spectrum was the speech of Lord Scarman, who took as his starting point 'the patient's right to make his own decision, which may be seen as a basic human right protected by the common law' (1985] 1 All ER 643 at 662, [1985] AC 871 at 882). From that starting point, he inferred (1985] 1 All ER 643 at 651, [1985] AC 871 at 884–885):

'

[2015] 2 All ER 1031 at 1043

patient's right to make his own decision, I can see no reason in principle why, if the risk materialises and injury or damage is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages.'

[44] In other words, if (1) the patient suffers damage, (2) as a result of an undisclosed risk, (3) which would have been disclosed by a doctor exercising reasonable care to respect her patient's right to decide whether to incur the risk, and (4) the patient would have avoided the injury if the risk had been disclosed, then the patient will in principle have a cause of action based on negligence.

[45] Lord Scarman pointed out that the decision whether to consent to the treatment proposed did not depend solely on medical considerations (1985] 1 All ER 643 at 652, [1985] AC 871 at 885–886):

'The doctor's concern is with health and the relief of pain. These are the medical objectives. But a patient may well have in mind circumstances, objectives and values which he may reasonably not make known to the doctor but which may lead him to a different decision from that suggested by a purely medical opinion.'

[46] This is an important point. The relative importance attached by patients to quality as against length of life, or to physical appearance or bodily integrity as against the relief of pain, will vary from one patient to another. Countless other examples could be given of the ways in which the views or circumstances of an individual patient may affect their attitude towards a proposed form of treatment and the reasonable alternatives. The doctor cannot form an objective, 'medical' view of these matters, and is therefore not in a position to take the 'right' decision as a matter of clinical judgment.

[47] In Lord Scarman's view, if one considered the scope of the doctor's duty by beginning with the right of the patient to make her own decision whether she would or would not undergo the treatment proposed, it followed that the doctor was under a duty to inform the patient of the material risks inherent in the treatment. A risk was material, for these purposes, if a reasonably prudent patient in the situation of the patient would think it significant. The doctor could however avoid liability for injury resulting from the occurrence of an undisclosed risk if she could show that she reasonably believed that communication to the patient of the existence of the risk would be detrimental to the health (including the mental health) of her patient.

[48] It followed from that approach that medical evidence would normally be required in order to establish the magnitude of a risk and the seriousness of the possible injury if it should occur. Medical evidence would also be necessary to assist the court to decide whether a doctor who withheld information because of a concern about its effect upon the patient's health was justified in that assessment. The determination of the scope of the doctor's duty, and the question whether she had acted in breach of her duty, were however ultimately legal rather than medical in character.

[49] Lord Scarman summarised his conclusions as follows (1985] 1 All ER 643 at 655, [1985] AC 871 at 889–890):

'To the extent that I have indicated, I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing and especially so if the treatment be surgery. The critical limitation is that the duty is confined to material risk.

[2015] 2 All ER 1031 at 1044

The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient's position would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if on a reasonable assessment of his patient's condition he takes the view that a warning would be detrimental to his patient's health.'

[50] Lord Bridge of Harwich, with whom Lord Keith of Kinkel agreed, accepted that a conscious adult patient of sound mind is entitled to decide for herself whether or not she will submit to a particular course of treatment proposed by the doctor. He recognised the logical force of the North American doctrine of informed consent, but regarded it as impractical in application. Like Lord Diplock, he emphasised patients' lack of medical knowledge, their vulnerability to making irrational judgments, and the role of 'clinical judgment' in assessing how best to communicate to the patient the significant factors necessary to enable the patient to make an informed decision (1985] 1 All ER 643 at 662, [1985] AC 871 at 899).

[51] Lord Bridge was also unwilling to accept without qualification the distinction drawn by the Supreme Court of Canada, in Reibl v Hughes [1980] 2 SCR 880, 114 DLR (3d) 1, between cases where the question is whether the doctor treated the patient in accordance with acceptable professional standards and cases concerned with the patient's right to know what risks are involved in undergoing treatment. In Lord Bridge's view, 'a decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice whether or not to undergo a particular treatment must primarily be a matter of clinical judgment' ([1980] 2 SCR 880 at 900, 114 DLR (3d) 1 at 13). It followed that the question whether non-disclosure of risks was a breach of the doctor's duty of care was an issue 'to be decided primarily on the basis of expert medical evidence, applying the Bolam test' (1985] 1 All ER 643 at 900, [1985] AC 871 at 900; emphasis supplied).

[52] Nevertheless, his Lordship qualified his adherence to the Bolam test in this context in a way which narrowed the gap between his position and that of Lord Scarman (1985] 1 All ER 643 at 663, [1985] AC 871 at 900):

'But, even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as for example the 10% risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes (1980) 114 DLR (3d) 1. In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient's right of decision, could hardly fail to appreciate the necessity for an appropriate warning.'

[53] In relation to this passage, attention has tended to focus on the words 'a substantial risk of grave adverse consequences'; and, in the present case, it was on those words that both the Lord Ordinary and the Extra Division concentrated. It is however important to note that Lord Bridge was merely giving an example ('The kind of case I have in mind would be …') to illustrate

[2015] 2 All ER 1031 at 1045

the general proposition that 'disclosure of a particular risk [may be] so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it'. In relation to that proposition, it is also important to note, having regard to the last sentence in the passage quoted, that the standard is that of a doctor who recognises and respects his patient's right of decision and is exercising reasonable care (ie is 'reasonably prudent'). Reading the passage as a whole, therefore, the question for the judge is whether disclosure of a risk was so obviously necessary to an informed choice on the part of the patient that no doctor who recognised and respected his patient's right of decision and was exercising reasonable care would fail to make it. So understood, Lord Bridge might be thought to arrive at a position not far distant from that of Lord Scarman.

[54] Lord Bridge also said (1985] 1 All ER 643 at 661, [1985] AC 871 at 898):

'I should perhaps add at this point, although the issue does not strictly arise in this appeal, that, when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must, in my opinion, be to answer both truthfully and as fully as the questioner requires.'

[55] Lord Templeman implicitly rejected the Bolam test, and approached the issue on the basis of an orthodox common law analysis. He noted, like Lord Diplock and Lord Bridge, the imbalance between the knowledge and objectivity of the doctor and the ignorance and subjectivity of the patient, but accepted that it was the right of the patient to decide whether or not to submit to treatment recommended by the doctor, and even to make an unbalanced and irrational judgment (1985] 1 All ER 643 at 666, [1985] AC 871 at 904). In contract, it followed from the patient's right to decide whether to accept proposed treatment that 'the doctor impliedly contracts to provide information which is adequate to enable the patient to reach a balanced judgment, subject always to the doctor's own obligation to say and do nothing which the doctor is satisfied will be harmful to the patient' (1985] 1 All ER 643 at 666, [1985] AC 871 at 904). The obligation of the doctor 'to have regard to the best interests of the patient but at the same time to make available to the patient sufficient information to enable the patient to reach a balanced judgment' (1985] 1 All ER 643 at 666, [1985] AC 871 at 904–905) also arose as a matter of a duty of care. Lord Templeman's formulation of the doctor's duty was, like Lord Scarman's, not confined to the disclosure of risks: the discussion of 'the possible methods of treatment' (1985] 1 All ER 643 at 666, [1985] AC 871 at 904), and therefore of reasonable alternatives to the treatment recommended, is also necessary if the patient is to reach a balanced judgment.

[56] Lord Templeman thus arrived, by a different route, at an outcome not very different from that of Lord Scarman. Although Lord Scarman drew on the language of human rights, his reasoning was in substance the same as Lord Templeman's: the doctor's duty of care followed from the patient's right to decide whether to undergo the treatment recommended.

[57] It would therefore be wrong to regard Sidaway as an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment. Only Lord Diplock adopted that position. On his approach, the only situation, other than one covered by the Bolam test, in which a doctor would be under a duty to provide information to a patient would be in response to questioning by the patient.

[2015] 2 All ER 1031 at 1046

[58] The significance attached in Sidaway to a patient's failure to question the doctor is however profoundly unsatisfactory. In the first place, as Sedley LJ commented in Wyatt v Curtis [2003] EWCA Civ 1779, [2003] All ER (D) 493 (Oct), there is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about. It is indeed a reversal of logic: the more a patient knows about the risks she faces, the easier it is for her to ask specific questions about those risks, so as to impose on her doctor a duty to provide information; but it is those who lack such knowledge, and who are in consequence unable to pose such questions and instead express their anxiety in more general terms, who are in the greatest need of information. Ironically, the ignorance which such patients seek to have dispelled disqualifies them from obtaining the information they desire. Secondly, this approach leads to the drawing of excessively fine distinctions between questioning, on the one hand, and expressions of concern falling short of questioning, on the other hand: a problem illustrated by the present case. Thirdly, an approach which requires the patient to question the doctor disregards the social and psychological realities of the relationship between a patient and her doctor, whether in the time-pressured setting of a GP's surgery, or in the setting of a hospital. Few patients do not feel intimidated or inhibited to some degree.

[59] There is also a logical difficulty inherent in this exception to the Bolam test, as the High Court of Australia pointed out in Rogers v Whitaker (1992) 16 BMLR 148 at 154, 175 CLR 479 at 486–487. Why should the patient's asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient's desire for the information, even if made known to the doctor, does not alter medical opinion. The exception, in other words, is logically destructive of the supposed rule. Medical opinion might of course accept that the information should be disclosed in response to questioning, but there would then be no exception to the Bolam test.

[60] Lord Bridge's other qualification of the Bolam test achieves an uneasy compromise, describing the issue as one to be decided 'primarily' by applying the Bolam test, but allowing the judge to decide 'that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it', the reasonably prudent medical man being 'a doctor, recognising and respecting his patient's right of decision'.

[61] Superficially, this resembles the qualification of the Bolam test subsequently stated by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 at 779, [1998] AC 232 at 243: that notwithstanding the views of medical experts, the court may conclude that their opinion is incapable of withstanding logical analysis. Lord Browne-Wilkinson however expressly confined his observations to cases of diagnosis and treatment, as distinct from disclosure of risk. In cases of the former kind, the court is concerned with matters of medical skill and judgment, and does not usually find a doctor guilty of negligence if she has followed a practice accepted as proper by a responsible body of doctors skilled in the relevant field. That is however subject to Lord Browne-Wilkinson's qualification where the court is satisfied that the professional practice in question does not meet a reasonable standard of care. In cases concerned with advice, on the other hand, the application of the Bolam test is predicated on the view that the advice to be given to the patient is an aspect of treatment, falling within the scope of

[2015] 2 All ER 1031 at 1047

clinical judgment. The 'informed choice' qualification rests on a fundamentally different premise: it is predicated on the view that the patient is entitled to be told of risks where that is necessary for her to make an informed decision whether to incur them.

[62] The inherent instability of Lord Bridge's qualification of the Bolam test has been reflected in a tendency among some judges to construe it restrictively, as in the present case, by focusing on the particular words used by Lord Bridge when describing the kind of case he had in mind (a substantial risk of grave adverse consequences), and even on the particular example he gave (which involved a 10% risk of a stroke), rather than on the principle which the example was intended to illustrate.

The subsequent case law

[63] In the present case, as in earlier cases, the Court of Session applied the Bolam test, subject to the qualifications derived from Lord Bridge's speech. In England and Wales, on the other hand, although Sidaway's case remains binding, lower courts have tacitly ceased to apply the Bolam test in relation to the advice given by doctors to their patients, and have effectively adopted the approach of Lord Scarman.

[64] The case of Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 is particularly significant in this context. The case concerned an expectant mother whose baby had gone over term. Her consultant obstetrician took the view that the appropriate course was for her to have a normal delivery when nature took its course, rather than a caesarean section at an earlier date, and advised her accordingly. In the event, the baby died in utero. The question was whether the mother ought to have been warned of that risk. In a judgment with which Roch and Mummery LJJ agreed, Lord Woolf MR said ((1998) 48 BMLR 118 at 124):

'In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.'

[65] In support of that approach, the Master of the Rolls referred in particular to the passage from Lord Bridge's speech in Sidaway which we have quoted at para [52]. In Lord Bridge's formulation, as we have explained, the question for the judge was whether disclosure of a risk was so obviously necessary to an informed choice on the part of the patient that no doctor who recognised and respected his patient's right of decision and was exercising reasonable care would fail to make it. In our view, the Master of the Rolls was correct to consider that 'a significant risk which would affect the judgment of a reasonable patient' would meet that test. Lord Woolf's approach is also consistent with that adopted in Sidaway by Lord Templeman (information which is adequate to enable the patient to reach a balanced judgment), as well as with the test favoured by Lord Scarman (that a reasonable person in the patient's position would be likely to attach significance to the risk). It does not, on the other hand, have anything to do with the Bolam test.

[2015] 2 All ER 1031 at 1048

[66] The Extra Division correctly pointed out in the present case that Lord Woolf spoke of a 'significant' risk, whereas Lord Bridge, when describing the kind of case he had in mind, had referred to a 'substantial' risk. In so far as 'significant' and 'substantial' have different shades of meaning, 'significant' is the more apt adjective. Lord Bridge accepted that a risk had to be disclosed where it was 'obviously necessary to an informed choice'; and the relevance of a risk to the patient's decision does not depend solely upon its magnitude, or upon a medical assessment of its significance.

[67] The point is illustrated by the case of Wyatt v Curtis [2003] EWCA Civ 1779, [2003] All ER (D) 493 (Oct), which concerned the risk of around 1% that chickenpox during pregnancy might result in significant brain damage. The Court of Appeal applied the law as stated in Pearce, observing that it was no less binding on the court than Sidaway. Sedley LJ stated:

'[16] Lord Woolf's formulation refines Lord Bridge's test by recognising that what is substantial and what is grave are questions on which the doctor's and the patient's perception may differ, and in relation to which the doctor must therefore have regard to what may be the patient's perception. To the doctor, a chance in a hundred that the patient's chickenpox may produce an abnormality in the foetus may well be an insubstantial chance, and an abnormality may in any case not be grave. To the patient, a new risk which (as I read the judge's appraisal of the expert evidence) doubles, or at least enhances, the background risk of a potentially catastrophic abnormality may well be both substantial and grave, or at least sufficiently real for her to want to make an informed decision about it.'

[68] It is also relevant to note the judgments in Chester v Afshar. The case was concerned with causation, but it contains relevant observations in relation to the duty of a doctor to advise a patient of risks involved in proposed treatment. Lord Bingham of Cornhill said that the doctor in question had been under a duty to warn the patient of a small (1–2%) risk that the proposed operation might lead to a seriously adverse result. The rationale of the duty, he said, was 'to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies' (para [5]). Lord Steyn cited with approval Lord Woolf MR's judgment in Pearce ((1998) 48 BMLR 118 at 124). Lord Walker of Gestingthorpe referred to a duty to advise the patient, a warning of risks being an aspect of the advice (at para [92]). He also observed at para [92] that during the 20 years which had elapsed since Sidaway's case, the importance of personal autonomy had been more and more widely recognised. He added at para [98] that, in making a decision which might have a profound effect on her health and well-being, a patient was entitled to information and advice about possible alternative or variant treatments.

[69] In more recent case law the English courts have generally treated Lord Woolf MR's statement in Pearce as the standard formulation of the duty to disclose information to patients, although some unease has on occasion been expressed about the difficulty of reconciling that approach with the speeches of Lord Diplock and Lord Bridge in Sidaway's case (see, for example, Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB), (2008) 104 BMLR 168). Significantly, the guidance issued by the Department of Health and the General Medical Council has treated Chester v Afshar as the leading authority.

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Comparative law

[70] The court has been referred to case law from a number of other major common law jurisdictions. It is unnecessary to discuss it in detail. It is sufficient to note that the Supreme Court of Canada has adhered in its more recent case law to the approach adopted in Reibl v Hughes, and that its approach to the duty of care has been followed elsewhere, for example by the High Court of Australia in Rogers v Whitaker (1992) 16 BMLR 148, 175 CLR 479 and subsequent cases.

[71] The judgment of Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers v Whitaker identifies the basic flaw involved in approaching all aspects of a doctor's duty of care in the same way ((1992) 16 BMLR 148 at 156, 175 CLR 479 at 489–490):

'Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.' (Original emphasis.)

[72] The High Court of Australia in Rogers also reformulated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do ((1992) 16 BMLR 148 at 157, 175 CLR 479 at 490):

'a risk is 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 or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.'

[73] That is undoubtedly right: the doctor's duty of care takes its precise content from the needs, concerns and circumstances of the individual patient, to the extent that they are or ought to be known to the doctor. In Rogers v Whitaker itself, for example, the risk was of blindness in one eye; but the plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks. Expressions of concern by the patient, as well as specific questions, are plainly relevant. As Gummow J observed in Rosenberg v Percival (2001) 205 CLR 434 at 459, courts should not be too quick to discard the second limb (ie the possibility that the medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it) merely because it emerges that the patient did not ask certain kinds of questions.

Conclusions on the duty of disclosure

[74] The Hippocratic Corpus advises physicians to reveal nothing to the patient of her present or future condition, 'for many patients through this

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cause have taken a turn for the worse' (Decorum, XVI). Around two millennia later, in Sidaway's case Lord Templeman said that 'the provision of too much information may prejudice the attainment of the objective of restoring the patient's health' ([1985] 1 All ER 643 at 666, [1985] AC 871 at 904); and similar observations were made by Lord Diplock and Lord Bridge. On that view, if the optimisation of the patient's health is treated as an overriding objective, then it is unsurprising that the disclosure of information to a patient should be regarded as an aspect of medical care, and that the extent to which disclosure is appropriate should therefore be treated as a matter of clinical judgment, the appropriate standards being set by the medical profession.

[75] Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public, either as individuals, or as members of a team drawn from different professional backgrounds (with the consequence that, although this judgment is concerned particularly with doctors, it is also relevant, mutatis mutandis, to other healthcare providers). The treatment which they can offer is now understood to depend not only upon their clinical judgment, but upon bureaucratic decisions as to such matters as resource allocation, cost-containment and hospital administration: decisions which are taken by non-medical professionals. Such decisions are generally understood within a framework of institutional rather than personal responsibilities, and are in principle susceptible to challenge under public law rather than, or in addition to, the law of delict or tort.

[76] Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by laws premised on the ability of the citizen to comprehend the information provided. It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation, as Lord Diplock implicitly acknowledged by making an exception for highly educated men of experience. To make it the default assumption on which the law is to be based is now manifestly untenable.

[77] These developments in society are reflected in professional practice. The court has been referred in particular to the guidance given to doctors by the

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General Medical Council, who participated as interveners in the present appeal. One of the documents currently in force (Good Medical Practice (2013)) states, under the heading 'The duties of a doctor registered with the General Medical Council':

'Work in partnership with patients.

•     Listen to, and respond to, their concerns and preferences.

•     Give patients the information they want or need in a way they can understand.

•     Respect patients' right to reach decisions with you about their treatment and care.'

[78] Another current document (Consent: patients and doctors making decisions together (2008)) describes a basic model of partnership between doctor and patient at para 5):

'(b) … The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.

(c)     The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one.'

In relation to risks, in particular, the document advises that the doctor must tell patients if treatment might result in a serious adverse outcome, even if the risk is very small, and should also tell patients about less serious complications if they occur frequently (para 32). The submissions on behalf of the General Medical Council acknowledged, in relation to these documents, that an approach based upon the informed involvement of patients in their treatment, rather than their being passive and potentially reluctant recipients, can have therapeutic benefits, and is regarded as an integral aspect of professionalism in treatment.

[79] Earlier editions of these documents (Good Medical Practice (1998), and Seeking patients' consent: The ethical considerations (1998)), in force at the time of the events with which this case is concerned, were broadly to similar effect. No reference was made to them however in the proceedings before the Court of Session.

[80] In addition to these developments in society and in medical practice, there have also been developments in the law. Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values. As Lord Scarman pointed out in Sidaway's case, these include the value of self-determination (see, for example, S v S [1970] 3 All ER 107 at 111, [1972] AC 24 at 43 per Lord Reid; McColl v Strathclyde Regional Council 1983 SC 225 at 241; Airedale NHS Trust v Bland [1993] 1 All ER 821 at 866, [1993] AC 789 at 864 per Lord Goff of Chieveley). As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by art 8 of the European Convention on Human Rights. The resulting duty to involve the patient in decisions relating to her treatment has been recognised in judgments of the European Court of Human Rights, such as Glass v UK (2004) 77 BMLR 120 and Tysiac v Poland (2007) 22 BHRC 155, as well as in a number of decisions

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of courts in the United Kingdom. The same value is also reflected more specifically in other international instruments: see, in particular, art 5 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, concluded by the member states of the Council of Europe, other states and the European Community at Oviedo on 4 April 1997.

[81] The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.

[82] In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient's entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

[83] The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor's advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions.

[84] Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.

[85] A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter. Deciding whether a person is so disinclined may

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involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. But the skill and judgment required are not of the kind with which the Bolam test is concerned; and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor. That is not to say that the doctor is required to make disclosures to her patient if, in the reasonable exercise of medical judgment, she considers that it would be detrimental to the health of her patient to do so; but the 'therapeutic exception', as it has been called, cannot provide the basis of the general rule.

[86] It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor's duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. It is unsurprising that courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar. There is no reason to perpetuate the application of the Bolam test in this context any longer.

[87] The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras [77]–[73]. 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.

[88] The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient's health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.

[89] Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.

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[90] Secondly, the doctor's advisory role involves dialogue, the aim of which is 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. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.

[91] Thirdly, it is important that the therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.

[92] There are, of course, arguments which can be advanced against this approach: for example, that some patients would rather trust their doctors than be informed of all the ways in which their treatment might go wrong; that it is impossible to discuss the risks associated with a medical procedure within the time typically available for a healthcare consultation; that the requirements imposed are liable to result in defensive practices and an increase in litigation; and that the outcome of such litigation may be less predictable.

[93] The first of these points has been addressed in para 85 above. In relation to the second, the guidance issued by the General Medical Council has long required a broadly similar approach. It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562, [1932] All ER Rep 1 was no doubt received in a similar way by the manufacturers of bottled drinks. The approach which we have described has long been operated in other jurisdictions, where healthcare practice presumably adjusted to its requirements. In relation to the third point, in so far as the law contributes to the incidence of litigation, an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in the event of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred. In relation to the fourth point, we would accept that a departure from the Bolam test will reduce the predictability of the outcome of litigation, given the difficulty of overcoming that test in contested proceedings. It appears to us, however, that a degree of unpredictability can be tolerated as the consequence of protecting patients from exposure to risks of injury which they would otherwise have chosen to avoid. The more fundamental response to such points, however, is that respect for the dignity of patients requires no less.

The disclosure of risks in the present case

[94] Approaching the present case on this basis, there can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section. The Court of

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Session focused upon the consequent risk that the baby might suffer a grave injury, a risk which was relatively small. The risk of shoulder dystocia, on the other hand, was substantial: on the evidence, around 9–10%. Applying the approach which we have described, the exercise of reasonable care undoubtedly required that it should be disclosed. Quite apart from the risk of injury to the baby (a risk of about 1 in 500 of a brachial plexus injury, and a much smaller risk of a more severe injury, such as cerebral palsy, or death), it is apparent from the evidence (summarised at paras [8]–[12] and [21] above) that shoulder dystocia is itself a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health. No woman would, for example, be likely to face the possibility of a fourth degree tear, a Zavanelli manoeuvre or a symphysiotomy with equanimity. The contrast of the risk involved in an elective caesarean section, for the mother extremely small and for the baby virtually non-existent, is stark and illustrates clearly the need for Mrs Montgomery to be advised of the possibility, because of her particular circumstances, of shoulder dystocia. This conclusion is reinforced by Dr McLellan's own evidence (summarised at paras [13] and [19] above), that she was aware that the risk of shoulder dystocia was likely to affect the decision of a patient in Mrs Montgomery's position, and that Mrs Montgomery herself was anxious about her ability to deliver the baby vaginally.

[95] There is no question in this case of Dr McLellan's being entitled to withhold information about the risk because its disclosure would be harmful to her patient's health. Although her evidence indicates that it was her policy to withhold information about the risk of shoulder dystocia from her patients because they would otherwise request caesarean sections, the 'therapeutic exception' is not intended to enable doctors to prevent their patients from taking an informed decision. Rather, it is the doctor's responsibility to explain to her patient why she considers that one of the available treatment options is medically preferable to the others, having taken care to ensure that her patient is aware of the considerations for and against each of them.

Causation

[96] As we have explained, the Lord Ordinary found that, even if Mrs Montgomery had been informed of the risk of shoulder dystocia and had been told of the alternative of a caesarean section, she would not have elected to undergo that procedure. That finding was upheld by the Extra Division.

[97] This court has reiterated in a number of recent cases, including McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477 and Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600, that appellate courts should exercise restraint in reversing findings of fact made at first instance. As was said in Henderson's case at para [67]:

'in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.'

It is in addition only in comparatively rare cases that this court interferes with concurrent findings of fact by lower courts. As Lord Jauncey of Tullichettle explained in Higgins v J & C M Smith (Whiteinch) Ltd 1990 SC (HL) 63 at 82:

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'Where there are concurrent findings of fact in the courts below generally this House will interfere with those findings only where it can be shown that both courts were clearly wrong.'

[98] As has been observed in the Australian case law, the issue of causation, where an undisclosed risk has materialised, is closely tied to the identification of the particular risk which ought to have been disclosed. In the present case, the Lord Ordinary focused on the risk of a severe injury to the baby, and said, in relation to causation (at [264]):

'I have already said that the real risk of grave consequences arising should shoulder dystocia occur were very small indeed. Given the very small risks the first question must be for the Court: Has the pursuer established on the basis of the 'But For' Test, a link between the failure to advise her of said risks and damage to the child. Or to put the matter another way, has the pursuer established that had she been advised of the said risks she would have chosen a caesarean section and thus avoided the damage to the child? (Emphasis supplied.)

[99] As we have explained, the Lord Ordinary described the evidence in relation to that matter as being in short compass, and said that 'it is as follows'. He then quoted the passage in Mrs Montgomery's evidence which we have narrated at para [18]. Having rejected that evidence as unreliable, he accordingly found that causation had not been established.

[100] Like the Lord Ordinary, the Extra Division approached the question of causation on the basis that the relevant issue was 'what [Mrs Montgomery] would have done if advised of the risk of grave consequences arising should shoulder dystocia occur', rather than what she would have done if advised of the risk of shoulder dystocia, and of the potential consequences of that complication. As we have explained, counsel pointed out that the Lord Ordinary had purported to narrate the entire evidence bearing on the issue, but had omitted any reference to the evidence given by Dr McLellan that had she raised the risk of shoulder dystocia with Mrs Montgomery, 'then yes, she would have no doubt requested a caesarean section, as would any diabetic today' (para [19] above). The Extra Division observed that that evidence had been given in the context of a discussion about professional practice in relation to advising of the risks of shoulder dystocia, rather than a focused consideration of the likely attitude and response of Mrs Montgomery.

[101] That particular piece of evidence did not however stand alone. It was consistent with the evidence given by Dr McLellan to the effect that diabetic women in general would request an elective caesarean section if made aware of the risk of shoulder dystocia (para [13] above). Her position was that it was precisely because most women would elect to have a caesarean section if informed of the risk of shoulder dystocia (contrary, in her view, to their best interests), that she withheld that information from them. That was also consistent with the evidence of the Board's expert witness, Dr Gerald Mason, that if doctors were to warn women at risk of shoulder dystocia, 'you would actually make most women simply request caesarean section' (para [25] above).

[102] The Lord Ordinary's failure to refer to any of this evidence does not in our view fall within the scope of Lord Simonds's dictum in Thomas v Thomas [1947] AC 484 at 492, that an appellate court is 'entitled and bound, unless there is compelling reason to the contrary, to assume that [the trial judge] has taken the whole of the evidence into his consideration'. That is an important

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observation, but it is subject to the qualification, 'unless there is compelling reason to the contrary'. In the present case, the Lord Ordinary not only failed to refer to any of this evidence, but also made the positive statement (at [265]) that: 'The evidence in relation to the [issue of causation] is in fairly short compass. It is as follows …' before quoting only the passage from the evidence of Mrs Montgomery. The apparent implication of that statement was that there was no other relevant evidence. Those circumstances constitute a compelling reason for concluding that there was a failure by the Lord Ordinary to consider relevant evidence; a failure which also affected the decision of the Extra Division.

[103] More fundamentally, however, the consequence of our holding that there was a duty to advise Mrs Montgomery of the risk of shoulder dystocia, and to discuss with her the potential implications and the options open to her, is that the issue of causation has to be considered on a different footing from that on which it was approached by the Lord Ordinary and the Extra Division. They had in mind the supposed reaction of Mrs Montgomery if she had been advised of the minimal risk of a grave consequence. The question should properly have been addressed as to Mrs Montgomery's likely reaction if she had been told of the risk of shoulder dystocia. On that question, we have Dr McLellan's unequivocal view that Mrs Montgomery would have elected to have a caesarean section. The question of causation must also be considered on the hypothesis of a discussion which is conducted without the patient's being pressurised to accept her doctor's recommendation. In these circumstances, there is really no basis on which to conclude that Mrs Montgomery, if she had been advised of the risk of shoulder dystocia, would have chosen to proceed with a vaginal delivery.

[104] Approaching the issue of causation in that way, we have therefore concluded that the evidence points clearly in one direction. We have mentioned the passages in the evidence of Mrs Montgomery, Dr McLellan and Dr Mason in which the likely response of Mrs Montgomery, or of women in her position in general, if advised of the risk of shoulder dystocia, was discussed. We have also mentioned Dr McLellan's evidence that Mrs Montgomery had been anxious about her ability to deliver the baby vaginally, and had expressed her concerns to Dr McLellan more than once. Although the Lord Ordinary expressed serious reservations about the extent to which Mrs Montgomery's evidence had been affected by hindsight, he had no such misgivings about Dr McLellan: she was found to be 'an impressive witness' in relation to the informed consent aspect of the case, and her evidence was 'credible and reliable'. In the light of that assessment, and having regard to her evidence in particular, the only conclusion that we can reasonably reach is that, had she advised Mrs Montgomery of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, Mrs Montgomery would probably have elected to be delivered of her baby by caesarean section. It is not in dispute that the baby would then have been born unharmed.

[105] It is unnecessary in these circumstances to consider whether, if Mrs Montgomery could not establish 'but for' causation, she might nevertheless establish causation on some other basis in the light of Chester v Afshar.

Conclusion

[106] For these reasons, we would allow the appeal.

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LADY HALE.

[107] In the third (2010) edition of their leading work on Principles of Medical Law, Andrew Grubb, Judith Laing and Jean McHale confidently announced that a detailed analysis of the different speeches of the House of Lords in Sidaway v Bethlem Royal Hospital Governors (1985) 1 BMLR 132, [1985] AC 871 was no longer necessary. A combination of the 2008 Guidance provided by the General Medical Council, the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 and the decision of the House of Lords in Chester v Afshar [2004] UKHL 41, [2004] 4 All ER 587, [2005] 1 AC 134 meant that it could now be stated 'with a reasonable degree of confidence' that the need for informed consent was firmly part of English law (para 8.70). This case has provided us with the opportunity, not only to confirm that confident statement, but also to make it clear that the same principles apply in Scotland.

[108] It is now well recognised that the interest which the law of negligence protects is a person's interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body (the unwanted pregnancy cases are an example: see Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2003] 4 All ER 987, [2004] 1 AC 309). Thus, as Jonathan Herring puts it in Medical Law and Ethics (4th edn, 2012) p 170, 'the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient's right of autonomy'.

[109] An important consequence of this is that it is not possible to consider a particular medical procedure in isolation from its alternatives. Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done: see the approach of the General Medical Council in Consent: patients and doctors making decisions together (2008), para 5, quoted by Lord Kerr and Lord Reed at para [77] and approved by them at paras [83]–[85].

[110] Pregnancy is a particularly powerful illustration. Once a woman is pregnant, the foetus has somehow to be delivered. Leaving it inside her is not an option. The principal choice is between vaginal delivery and caesarean section. One is, of course, the normal and 'natural' way of giving birth; the other used to be a way of saving the baby's life at the expense of the mother's. Now, the risks to both mother and child from a caesarean section are so low that the National Institute for Health and Clinical Excellence (NICE clinical guideline [CG132], November 2011, para 1.2.9.5) clearly states that: 'For women requesting a CS, if after discussion and offer of support (including perinatal mental health support for women with anxiety about childbirth), a vaginal birth is still not an acceptable option, offer a planned CS. [new 2011].'

[111] That is not necessarily to say that the doctors have to volunteer the pros and cons of each option in every case, but they clearly should do so in any case where either the mother or the child is at heightened risk from a vaginal delivery. In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after-effects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth.

[2015] 2 All ER 1031 at 1059

[112] It was well recognised in 1999 that an insulin-dependent diabetic mother could have a larger than average baby. This brings with it a 9–10% risk of 'mechanical problems' in labour, either that the baby's head will fail to descend or, worse still, that it will descend but the baby's shoulders will be too broad to follow the head through the birth canal and will therefore get stuck. Desperate manoeuvres are then required to deliver the baby. As the Royal College of Obstetricians and Gynaecologists state in their Guideline No 42 on Shoulder Dystocia (2005),

'There can be a high perinatal mortality and morbidity associated with the condition, even when it is managed appropriately. Maternal morbidity is also increased, particularly postpartum haemorrhage (11%) and fourth-degree perineal tears (3.8%), and their incidence remains unchanged by the manoeuvres required to effect delivery.'

No one suggests that this was not equally well known in 1999. The risk of permanent injury to the baby is less than the risk of injury to the mother, but it includes a very small risk of catastrophic injury resulting from the deprivation of oxygen during delivery, as occurred in this case.

[113] These are risks which any reasonable mother would wish to take into account in deciding whether to opt for a vaginal delivery or a caesarean section. No doubt in doing so she would take serious account of her doctor's estimation of the likelihood of these risks emerging in her case. But it is not difficult to understand why the medical evidence in this case was that, if offered a caesarean section, any insulin dependent pregnant woman would take it. What could be the benefits of vaginal delivery which would outweigh avoiding the risks to both mother and child?

[114] We do not have a full transcript of the evidence, but in the extracts we do have Dr McLellan referred to explaining to a mother who requested a caesarean section 'why it may not be in the mother's best interest' and later expressed the view that 'it's not in the maternal interests for women to have caesarean sections'. Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter. Giving birth vaginally is indeed a unique and wonderful experience, but it has not been suggested that it inevitably leads to a closer and better relationship between mother and child than does a caesarean section.

[115] In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear, as Lord Kerr and Lord Reed conclude at para [85], that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the 'natural' and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide (St George's Healthcare NHS Trust v S [1998] 3 All ER 673, [1999] Fam 26). There is no good reason why the same should not apply in reverse, if she is prepared to forgo the

[2015] 2 All ER 1031 at 1060

joys of natural childbirth in order to avoid some not insignificant risks to herself or her baby. She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision.

[116] As NICE (2011) puts it, 'Pregnant women should be offered evidence-based information and support to enable them to make informed decisions about [their care and treatment]' (para 1.1.1.1). Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.

[117] These additional observations, dealing with the specific example of pregnancy and childbirth, are merely a footnote to the comprehensive judgment of Lord Kerr and Lord Reed, with which I entirely agree. Were anyone to be able to detect a difference between us, I would instantly defer to their way of putting it. I would allow this appeal.

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