Court of Appeal reinforces Importance of Informed Patient Choice

The Court of Appeal has handed down its first judgment since the landmark case of Montgomery v. Lanarkshire Health Board [2015] UK SC 11 reinforcing the importance placed on patient choice.

The case of Sebastian Webster (a Child and Protected Party by his Mother and Litigation Friend, Heather Butler) v. Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62 concerned a child who was suffering from cerebral palsy as a result of a prenatal brain injury which occurred only 48 to 72 hours prior to delivery. Had the child been delivered earlier then the brain injury would have been avoided.

An ultrasound scan in the third trimester had revealed some anomalies in the fetus but the gynaecologist didn’t note these down. The gynaecologist had admitted negligence in failing to arrange further scans. Although repeated scans would have reassured the gynaecologist, the evident fetus features should have been revealed to the mother and this would have resulted in her asking for an induced labour. The mother argued that she would not have wanted to take the risks associated with prolonging pregnancy even though the research into the area was new and evidenced only a small risk.

The mother did not go into labour on her due date and Sebastian was born nearly 2 weeks late. The claimant’s brain injury occurred between her due date and birth as a result of a cord incident. She argued that had she been offered an induced labour on her due date then the brain injury would have been avoided.

The hospital argued that anomalies relied on would not have given rise to the need for any heightened vigilance or advice about dangers which might be avoided by induction.

The Judge found that had the mother been advised of any increased risks associated with prolonging pregnancy she would have opted for induction. However, adopting the Bolam test, he held that some obstetricians would have continued with a natural pregnancy and avoided induction.

The Court of Appeal overturned the decision. The Judge had based his judgment on the Bolam test. However, following Montgomery that was no longer the correct approach. There was an obligation on medical professionals to present patients with treatment options and their associated material risks and uncertainties and allow the patients to make their own informed decisions.

Following Montgomery, the Court of Appeal found that the mother should have been informed of the fetus features and the recent research indicating the small risk of delaying labour in such circumstances. As the mother, a graduate nurse, would have opted for induction in light of such information the obstetrician was held liable.

This case reinforces the wide implications of Montgomery for medical practitioners and the social expectation that patients should be able to make their own informed decisions.

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