Webster (A Child) v Burton Hospitals NHS Foundation Trust

In a medical negligence claim concerning advice about delivery, the Bolam approach is not the correct test where the issue involves patient choice and value judgments about treatment. The clinician must take reasonable care to present material risks and uncertainties of the available options, including reasonable alternatives, so that the patient can make an informed decision. Materiality depends on the circumstances and the patient’s characteristics, not percentages alone. Emerging evidence of increased risk may require disclosure even where the statistical base is small. On the findings, the mother would have chosen earlier delivery if properly advised. The appeal was therefore allowed.

The appellant was born with cerebral palsy after a hypoxic-ischaemic brain injury sustained before delivery. It was common ground that delivery before 16.09 on 4 January 2003 would have avoided the injury. The respondent hospital admitted breach of duty in failing to arrange further ultrasound scans after findings of small-for-gestational-age growth, asymmetry and polyhydramnios, but denied causation.

HH Judge Inglis, in a judgment dated 28 November 2014, found for the hospital on liability. He concluded that a responsible body of obstetricians could reasonably have continued with conservative management. The appeal concerned the effect of the later decision on informed medical advice and whether the mother would have chosen induction on 27 December 2002 if properly informed of the risks and uncertainties.

Appeal allowed. Breach of duty was admitted, and the Court of Appeal reversed the first-instance decision on causation and liability.

1. The judge below had assessed the case by asking whether the obstetrician’s approach was supported by a responsible body of medical opinion. That was the Bolam approach: Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582. The Court held that it was no longer the correct approach to advice involving patient choice and value judgments.
2. Following Montgomery v. Lanarkshire Health Board [2015] UKSC 11 ([2015] AC 1430), the doctor’s obligation, subject to cases where disclosure would damage the patient’s welfare, was to take reasonable care to present material risks and uncertainties of recommended treatment and reasonable alternatives. Materiality was fact-sensitive. It depended on matters including the nature and consequences of the risk, the available alternatives, and the characteristics of the patient. The patient’s informed choice could not be displaced by medical opinion on matters extending beyond purely medical skill.
3. The court had to identify what information should have been presented on 27 December 2002 and determine the mother’s likely response. The information should have included the rare combination of small-for-gestational-age growth and polyhydramnios, relevant possible complications, and emerging but recent and incomplete evidence of increased perinatal, including ante-partum, mortality associated with delaying labour. The small statistical base did not make the information immaterial.
4. On the judge’s findings, the mother would have wanted delivery on 27 December if given the proper information, even if the information included arguments favouring continued pregnancy. A second opinion was not required before accepting that conclusion. The appeal was allowed and the judge’s decision on liability was reversed.

• Court of Appeal (Civil Division): On 13 February 2017, the court allowed the appeal and reversed the decision on liability. [2017] EWCA Civ 62.
• High Court of Justice, Queen’s Bench Division: HH Judge Inglis, on 28 November 2014, found for the respondent hospital on liability and causation, with breach admitted.