The UK Supreme Court has overturned the 1980s Sidaway judgement on informed consent in medical cases, which established a very high hurdle for claimants to overcome in order to show that a defendant doctor had failed in their duty of care.
The House of Lords in Sidaway applied the Bolam test to the quality of medical information provided to a patient about to receive treatment, the standard being that no competent doctor acting with reasonable skill and care would have omitted to warn of a particular inherent risk.
In the case at hand, Montgomery v. Lanarkshire Health Board, a baby boy was starved of oxygen during delivery and as a result sustained severe brain damage. The principle claim was against the mother’s obstetrician for failure to give adequate warning. The claimant was diabetic and of small stature and, as diabetic mothers are likely to have larger babies, was at an increased risk of experiencing problems while giving birth. During delivery, the shoulders of the baby got stuck due to shoulder dystocia, causing injury. The obstetrician claimed she did not warn of the occurrence of shoulder dystocia due to the remote risk involved, an opinion that was supported by experts who gave evidence at trial.
The Court noted that case law in England, Australia and Canada has ceased to follow Sidaway as times have moved away from a culture of medical paternalism. In the Court’s view, “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... To make it the default assumption on which the law is to be based is now manifestly untenable.” The Court equally noted that the resulting duty to involve a patient in treatment decisions has been recognised in Strasbourg cases such as Glass v United Kingdom and Tysiac v Poland.
The ruling places with patients the responsibility for taking risks that affect their own lives and living with the consequences of their choices. The Court, however, outlined one limited exception – the ‘therapeutic exception’ – which allows a doctor to reasonably withhold information as to risk if disclosure would do serious detrimental damage to the patient’s health. The Court emphasised that this rule should not be used simply where a doctor thinks that a patient is liable to make a choice that the doctor believes to be contrary to the patient’s best interests.
The Court went on to decide that the obstetrician should have warned the mother of the risks of shoulder dystocia and discussed alternative birthing arrangements, such as an elective caesarean section.