Montgomery v Lanarkshire Health Board

The Supreme Court held that a doctor is under a duty to take reasonable care to ensure that a patient is aware of any material risks inherent in proposed treatment and of reasonable alternatives. The previously-applicable broad application of the Bolam test to disclosure of risks was rejected: the question whether a risk is material is one for the court and depends on whether a reasonable person in the patient’s position would be likely to attach significance to it, or whether the doctor is or should reasonably be aware that the particular patient would likely attach significance to it. The court recognised limited exceptions (for example, where disclosure would be seriously detrimental to the patient’s health or in emergencies).

Applying that test, the court held that the appellant should have been informed of the substantial risk of shoulder dystocia in her diabetic pregnancy and of the option of elective caesarean section. The court also found that had she been properly informed she would probably have elected a caesarean section and that causation was therefore established. The appeal was allowed.

Background and parties: Nadine Montgomery brought an action on behalf of her son alleging negligence by Dr Dina McLellan and Lanarkshire Health Board in failing to advise her of the risk of shoulder dystocia associated with vaginal delivery of a baby in a diabetic pregnancy and in the management of labour. The child suffered severe disabilities following delivery. The case reached the Supreme Court on appeal from the Court of Session.

Procedural history: The Lord Ordinary rejected both negligence grounds at first instance ([2010] CSOH 104). The Inner House (Extra Division) dismissed the reclaiming motion ([2013] CSIH 3). The decision was appealed to the Supreme Court.

Nature of the claim / relief sought: Damages were sought for injuries to the child caused by negligent failure to advise the mother of material risks and (in separate grounds) negligent management of labour.

Issues framed:

• Whether the Bolam approach governs the duty to advise patients of risks, or whether the law imposes a distinct duty of disclosure to enable informed decision-making;
• Whether, applying the correct test, the doctor breached any duty by failing to advise Mrs Montgomery of the risk of shoulder dystocia and of elective caesarean section as an alternative;
• Whether causation was established — i.e. whether Mrs Montgomery would have chosen caesarean section if properly informed; and whether any different causation rule (as in Chester v Afshar) applied.

Court’s reasoning: The court reviewed Sidaway and related authority and concluded that the Bolam test is not appropriate for determining the scope of disclosure to patients. The correct test is whether a reasonable person in the patient’s position would be likely to attach significance to the risk or whether the doctor is or should reasonably be aware that the particular patient would attach significance to it. The court accepted limited exceptions (therapeutic exception; necessity/emergency).

Applying the test to the facts, the court found that shoulder dystocia carried a substantial risk (about 9–10% in diabetic mothers) and significant risks to mother and child; disclosure was therefore required. The court concluded that the Lord Ordinary and the Extra Division erred in their assessment of causation because they evaluated the wrong risk (focusing only on the small chance of a grave outcome rather than on the substantial risk of shoulder dystocia) and failed to consider material evidence, including the treating clinician’s evidence that the mother would likely have chosen caesarean delivery if informed. On the proper analysis, causation was established: had the risk been disclosed the child would probably have been delivered by caesarean and unharmed.

Wider implications: The judgment confirms and clarifies the duty of patient disclosure across the United Kingdom, aligns legal standards with guidance emphasising patient autonomy and informed decisions, and narrows the application of Bolam in relation to disclosure.

The appeal was allowed. The court held that a doctor must take reasonable care to ensure that a patient is aware of any material risks inherent in proposed treatment and of reasonable alternatives; the Bolam test does not generally govern disclosure of risks. Applying that test, the doctor should have informed Mrs Montgomery of the risk of shoulder dystocia and of the option of elective caesarean section, and on the evidence the mother probably would have chosen caesarean section so causation was established.

Appeal to the Supreme Court from the Inner House, Court of Session (Extra Division) [2013] CSIH 3; the Lord Ordinary decision at first instance was [2010] CSOH 104. The Supreme Court allowed the appeal and reversed the Court of Session.