Patient autonomy and material risk

Posted by Patricia Wakeford on

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Very recently the Supreme Court provided a judgement on a case concerning a pregnant woman with diabetes. Shoulder dystocia occurred at delivery and the baby suffered cerebral palsy and Erb's palsy (Montgomery (Appellant) v Lanarkshire Health Board (Respondent) [2015] UKSC 11 On appeal from [2013] CSIH).

Mrs M. was pregnant with her first child and suffered from insulin dependent diabetes mellitus. Her pregnancy was regarded as being of high risk and as a result she required intensive monitoring. Dr M. made the decision to continue with a vaginal delivery without discussing the 9-10% risk of shoulder dystocia. He was concerned that Mrs M would opt for a caesarean section which he felt was not in her best interests. Mrs M. was not informed comprehensively about the risks of a larger baby that can occur when the mother suffers from diabetes. She was not told about the danger of her baby's shoulders becoming impacted during the vaginal birth.

The Claimant's mother brought a claim against Dr M., a consultant obstetrician and gynaecologist employed by Lanarkshire Health Board, responsible for Mrs M. during her pregnancy and labour. Mrs M. alleged that had she been made fully aware of the risks of vagina birth, particularly about the risk of shoulder dystocia, she would have chosen to have her child delivered by caesarean section.

Both, the Court of Session and the Inner House dismissed the case based on the approach laid down by the majority in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley, saying that the doctor could decide not to disclose all the information relating to the risks if any other doctors would do the same. It was held the Claimant did not make specific further enquiries as to the risks, such as shoulder dystocia, and also it was upheld that even had the Claimant been informed about the risks of shoulder dystocia, it is likely that she would have opted for a vagina delivery any way and the outcome of the delivery would have been the same.

The Claimant appealed to the Supreme Court. The court considered whether the approach used by previous courts was still correct. In particular the court questioned the significance of a patient's failure to question a doctor; the duty to advise the claimant of the risk of shoulder dystocia if the decision for vagina delivery was made and would the Claimant have made the decision for elective caesarean section had she been fully informed of the risks and potential complications.

The Supreme Court decided to dismiss the previous court's conclusions and judgements and allowed the appeal. The Claimant was awarded £5.25 million of compensation.

This decision does not change the status quo in that a patient's autonomy must be respected. A clinician must consider the risks relevant to his patient and discuss these with her/him. He must advise of any material risk. In this case such a risk would be shoulder dystocia due to the fact that babies of diabetic mothers can be bigger than babies of non-diabetic mothers. The patient then has the right to consider the options available and make her own choice as to how she wants to proceed. There will still remain occasions when a clinician can decide that certain information may not be in the patient's best interest, but this will be an exceptional circumstance. A clinician will want to act in his patient's best interest. However, a paternalistic approach is no longer acceptable if a patient is deprived of the information they need to make their own informed decision.

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About the Author

Patricia is a Senior Associate, in our Clinical Negligence team, and is also a qualified midwife with many years of experience working in the NHS.

Patricia Wakeford
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023 8085 7310

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