Court of Appeal: Lord Woolf M.R. and Roch and Mummery L.JJ.

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1 Ex Abundante Head Notes Pearce v. United Bristol Healthcare N.H.S. Trust Court of Appeal: Lord Woolf M.R. and Roch and Mummery L.JJ. Mrs Pearce, a mother of five children was pregnant. The baby was due on 13 November On 27 November Mrs Pearce saw her consultant, an employee of the Defendant. She was very concerned that she was fourteen days overdue and requested that the baby be induced or delivered by caesarean section. Having examined her, the consultant explained the risk of inducing labour and that the recovery from a caesarean section was slower. He advised her that she should proceed to a natural delivery. Mrs Pearce accepted his advice. On 4 December, Mrs Pearce was admitted to hospital and gave birth to a stillborn baby. Mrs Pearce and her husband sued the Defendant for damages in negligence. The trial judge dismissed their claim. On appeal, the plaintiffs argued that the consultant should have advised Mrs Pearce of the increased risk of the baby being stillborn if delivery was delayed beyond 27 November and that had she known of the risk she would have insisted on delivery by caesarean section. Held, dismissing the appeal, 1) In determining what information to provide a patient, a doctor has to have regard to all the relevant circumstances, including the patient s ability to comprehend the information and the physical and emotional state of the patient. Normally, it is a doctor s legal duty to advise a patient of any significant risks which may affect the judgment of a reasonable patient in making a treatment decision: Sidaway v. Governors of the Bethlem Royal Hospital [1985] 1 A.C. 871 (H.L.) and Bolitho v. City and Hackney H.A. [1997] 4 All E.R. 771 (H.L.).

2 2) The evidence established that the increased risk of stillbirth in delaying delivery of the baby after 27 November was very small, something like 1 to 2 in 1,000. 3) The experts who gave evidence did not consider this risk to be a significant one. Particularly having regard to the first plaintiff s distressed state, this was not a proper case for the court to interfere with the clinical opinion of the expert medical man responsible for treating the patient. 4) Even if the first plaintiff had been advised of the risk, the inference from the evidence was that she would still have agreed to a natural delivery. Per Lord Woolf M.R.: If a patient asks about a risk, it is the doctor s legal duty to give an honest answer.

3 Re C (Mental patient: Medical Treatment) High Court Family Division. Thorpe J. 14 October 1993 Medical treatment - Advance treatment directive - Mentally disordered patient - Patient's declaration refusing amputation of gangrenous foot even if necessary as life-saving measure - Doctor's duty to conform to patient's wishes if patient capable of giving or withholding consent at time of declaration - Inherent jurisdiction of court to grant declarations of capacity to consent or refuse - Inherent jurisdiction to grant injunction restraining hospital from carrying out treatment contrary to a valid advance directive. The plaintiff, a 68 year old man who suffered from paranoid schizophrenia, was a patient at Broadmoor Special Hospital. He developed gangrene in his leg. He was told that his life would be in serious danger if he did not have his right foot amputated. He refused to consent to amputation in any circumstances, even if it meant death. The immediate danger to C's health was averted by surgery at Heatherwood Hospital to remove the area infected tissue without amputation. His solicitor subsequently sought an undertaking from the hospital authorities that they would recognise C's repeated refusals and would not amputate in any future circumstances. No such undertaking was given, and the applicant sought a declaration that he was capable of refusing amputation and an injunction restraining Heatherwood Hospital from amputating his right leg without his express written consent. Held - granting the orders sought 1) The High Court has power, exercising its inherent jurisdiction, to rule by way of injunction or declaration that an individual is capable of refusing or consenting to medical treatment, and to determine the effect of a purported advanced directive as to the future medical treatment. 2) A refusal can take the form of a declaration of intention never to consent in the future or never to consent in some future circumstances; Airedale NHS Trust v Bland (1992) 12 BMLR 64; [1993] 2 W.L.R. 316 applied. The question to be decided here was whether C's capacity was so reduced by his chronic mental illness that he did not sufficiently understand the nature, purpose and effects of the proffered amputation. Although his general capacity was impaired by schizophrenia, he had understood and retained the treatment information, in his own way he believed it, and in the same fashion he had arrived at a clear choice.

4 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 Clinical negligence Consent to treatment Breach of duty of care Provision of information Obstetrics 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. The pursuer 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 defender 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 by the pursuer. 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 cardiotocograph 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 the pursuer 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 had held that as the pursuer 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, the pursuer would not have opted to have a caesarean section.

5 The pursuer s reclaiming motion was refused by an Extra Division of the Inner House of the Court of Session. She appealed to the Supreme Court. Held Allowing the appeal, an adult with capacity was entitled to decide which treatment to undergo, and the consent of the pursuer should have been obtained before any treatment was carried out. A doctor has a duty to take reasonable care to ensure that the patient is informed about any material risks involved in the recommended treatment, and of any reasonable alternative treatments. Approving Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 the court expressed the view that 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 therapeutic exception is a limited exception to the general principle, and it did not allow doctors to prevent their patients from taking an informed decision, as it was the doctor s responsibility to explain in comprehensible terms to the patient why one of the available treatment options is medically preferable to the others, after taking care to ensure that the patient was aware of the considerations for and against each of them. However, the opinion of the Court was that a doctor could withhold information if it could reasonably be considered that its disclosure would be seriously damaging to the patient s health, or in circumstances of necessity. Turning to the instant case, in all the circumstances, the doctor should have advised the pursuer 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. In conclusion, on the evidence, there was no basis for the view that the pursuer, if she had been appropriately advised, would not have opted to have a vaginal delivery. Sidaway v Bethlem Royal Hospital Governors (1985) 1 BMLR 132, [1985] AC 871, HL(E) departed from