Guy Pomphrey recently blogged about a Women’s Right to Choose in childbirth. This blog looks at the legal principles behind this choice.
In the recent case of Webster v Burton Hospitals NHS Foundation Trust, February 2017, the Court of Appeal considered the extent of a doctor’s duty to advise a patient on available treatment.
The decision in Webster applies the March 2015 decision of the Supreme Court in Montgomery v Lanarkshire Health Board, in which it was held that in cases where the court had to consider what treatment options should have been explained to a patient, it was no longer enough to decide on this simply by reference to what the “reasonable doctor” would have explained at the time.
The Court found that society now recognises that patients are entitled to exercise choice and it is no longer acceptable to regard them as unable to understand medical matters. Although the doctor will be judged according to the traditional “reasonable doctor” test when considering the investigation of a patient’s condition or in the treatment given (such matters requiring the exercise of professional) when the doctor discusses with the patient the options for treatment and possible alternatives (including the risks entailed in any options) the patient is entitled to decide how to be treated and what risks which he or she is willing to accept.
“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 ... treatments.”
Furthermore, it isn’t just for the doctor to decide on what advice the patient should be given. In Montgomery the court said “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.”
In Montgomery, a pregnant woman was expecting a larger than usual baby and had expressed concern about this. The size of the baby involved a high risk of the baby’s shoulder becoming trapped during delivery. The risk of grave harm to the baby if this should happen was small.
The doctor declined to warn, taking the view that if the risk of the shoulder becoming trapped was mentioned, most mothers would choose to give birth by caesarean section, which was not always desirable because a caesarean section itself involves risk. In the event, during an attempt to give birth naturally the baby’s shoulder became trapped. The baby was temporarily deprived of oxygen and suffered cerebral palsy.
The Supreme Court ruled that the mother, who had previously expressed concern about the size of her baby, should have been advised on the option of caesarean section and that had such advice been given she would have chosen that option with the result that her baby would not have suffered harm.
In Webster, another case involving the management of a woman in labour, the issue was whether the mother should have been advised that she could choose to have labour induced. A scan taken before labour commenced showed that the baby was small and there were other features giving cause for concern.
Further scans should have been arranged in order to keep matters under review but this wasn’t done. This was admitted to have been negligent. However the hospital argued that even if the anomalies noted on the scan that was performed had been taken into account, there was no need for any extra vigilance or advice about the merits of induction of labour.
The trial Judge found that if the mother had been advised to proceed to induction or that there were increased risks in waiting for labour to start naturally, she would have accepted the advice and would have been induced. However, the Judge adopted the traditional “reasonable doctor” test and concluded that a responsible body of obstetricians would not have advised of the option to induce labour and so the claim failed.
Ms Webster appealed and relied on the ruling of the Supreme Court in Montgomery. The Court of Appeal allowed her appeal and followed the Montgomery principle. The trial judge should not have used the “reasonable doctor” test, which was no longer the correct approach since Montgomery.
The Court of Appeal held that the doctor’s obligation was to present the material risks and uncertainties entailed in the different treatment options and to allow the patient to make a decision that could affect her wellbeing (and that of her baby) on the basis of full information. The significance of the risks and uncertainties (including the possibility of other treatments) were sensitive to the characteristics of the patient.
In the case of Webster, the court said that the evidence of the mother, her background (which included a university degree in nursing) and her willingness to take responsibility for her pregnancy all pointed to a likelihood that had she been given full information about the situation, the options for treatment and the risks involved, she would have decided to be induced into labour. It was accepted that had she been so induced, the problems which were eventually experienced during labour would have been avoided and the child would not have been harmed.
Thus, in the case of Webster the Court of Appeal has applied the principle enunciated by the Supreme Court in Montgomery and has made clear that, where the patient is of sound mind, a doctor has a duty to advise of the available treatment options and the risks involved in each situation before allowing the patient to make an informed choice. It can no longer be assumed that the competent doctor is entitled to decide what the patient is entitled to know.
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