Mrs A v East Kent Hospitals University NHS Foundation Trust

A doctor must take reasonable care to ensure that a patient is aware of material risks and reasonable alternatives. Materiality is fact-sensitive and depends on what a reasonable patient in that position would consider significant, or what the doctor knows or ought reasonably to know the particular patient would consider significant. The duty does not require warning about merely theoretical or negligible risks. In assessing materiality, the court must consider the clinical evidence as a whole, including relevant test results, imaging, the timing and pattern of abnormality, and the patient’s characteristics. A claim based on the omission of advice fails where the evidence does not establish a material risk and the claimant would not, in any event, have pursued the proposed investigation or treatment.

This was a liability-only clinical negligence claim arising from the birth of B, who suffered severe disabilities caused by an unbalanced chromosome 4 and chromosome 11 translocation. Mrs A alleged that the Trust’s doctors should have warned her on 13 May or 3 June 2009 that the fetus might have a chromosomal abnormality. She said that, if warned, she would have undergone amniocentesis and then terminated the pregnancy if the abnormality had been confirmed.

The central issues were whether there was a material risk requiring disclosure, whether Mrs A would have requested amniocentesis, and whether she would have chosen termination at a late stage of pregnancy.

1. Consent and materiality. Following Montgomery v Lanarkshire Health Board [2015] UKSC 11, the applicable test was whether the risk was one to which a reasonable person in the patient’s position would attach significance, or which the doctor knew or ought reasonably to have known the particular patient would attach significance. Materiality could not be reduced to percentages and was sensitive to the circumstances and characteristics of the patient. The approach was consistent with the GMC guidance and the principles stated in Pearce v United Bristol Healthcare NHS Trust and Wyatt v Curtis.
2. The evidence did not establish a material risk on either date. The fetus had reached 27 weeks and 6 days by 13 May, the relevant trisomy screening had reduced the principal chromosomal risks to background levels, ultrasound had disclosed no structural abnormality, and the growth restriction was late, asymmetric and concentrated on abdominal circumference. Reduced amniotic fluid and the other findings pointed more strongly to placental insufficiency. The competing expert evidence placing the risk at 1–3 per cent was rejected. The risk was instead assessed as negligible, theoretical or at background level.
3. There was consequently no breach in failing to discuss fetal karyotyping or amniocentesis. A reasonable patient in Mrs A’s position would not have attached significance to the background risk. In any event, after discussion she would have understood that amniocentesis carried a real risk of premature delivery, with associated risks to the baby, and would not have chosen it to investigate a negligible risk.
4. The court also granted an anonymity order under the human-rights jurisdiction. Speculative concern that medical professionals might treat B less favourably could not justify anonymity. However, the particular evidence concerning B’s vulnerability and the risk of confrontation justified protecting the family’s identities while preserving open reporting of the claim and judgment. The claim was dismissed.

Not stated in the judgment.