CNZ v Royal Bath Hospitals NHS Foundation Trust & Anor

Informed consent requires discussion of reasonable alternative treatments where they are genuinely available in the circumstances. A hospital cannot logically regard caesarean section as unavailable while accepting that it would perform one after a patient’s informed and persistent choice.

During labour, clinicians must respond to the patient’s informed choice, the clinical risks, and the need for timely delivery. Where fetal monitoring becomes inadequate and the inter-twin interval has expired, delay may constitute negligence.

For causation, the ordinary but for test remains applicable where the evidence establishes that each additional minute of hypoxic injury caused further brain damage. If medical science makes it impossible, rather than merely difficult, to quantify the functional outcome attributable to the negligent component, the claimant may recover the full loss where the negligence made more than a de minimis contribution.

The claimant, who had quadriplegic cerebral palsy following acute profound hypoxic ischaemia at birth, sued the hospital trust and the Secretary of State. She alleged that her mother should have been offered or permitted caesarean section antenatally and that the hospital negligently delayed delivery of the second twin during labour.

The court considered the antenatal discussions, the mother’s preferences concerning normal vaginal delivery, artificial rupture of membranes and epidural anaesthesia, the events surrounding the request for caesarean section during labour, fetal monitoring, delay in theatre, and the medical evidence on causation and apportionment.

The central issues were whether the antenatal consent process was negligent, whether the labour management caused actionable delay, and whether the resulting brain injury was divisible for causation and damages.

1. Antenatal consent. Applying Montgomery, caesarean section was a reasonable treatment option in the circumstances because the hospital accepted that it would ultimately agree to a caesarean section following a properly informed and persistent maternal choice. However, the antenatal discussion on 30 January 1996 did address caesarean section. The mother was counselled against it, agreed to induction and normal vaginal delivery, and was not denied an informed choice. The antenatal claim therefore failed.
2. Labour management. By about 00.25, the fetal head remained high, the cervix was closing, the usual 30-minute inter-twin period was expiring, epidural anaesthesia was unavailable, and the mother did not want artificial rupture of membranes. Urgent transfer to theatre was required, subject to a rapid assessment of whether descent made vaginal delivery possible. Caesarean section under general anaesthesia was the best reasonable option at that stage.
3. The registrar failed to explain the reasonable alternatives and their risks and benefits, failed to elicit and act upon the parents’ informed choice for caesarean section, failed adequately to inform the consultant of the relevant circumstances, delayed transfer and anaesthetic preparation, and took too long to complete the operation. The hospital was negligent in causing approximately 6.5 minutes’ delay. The fetal heart rate was not adequately monitored after removal of the CTG at about 00.40.
4. Causation and apportionment. The ordinary but for test was satisfied because the evidence established that the negligent delay caused the additional acute hypoxic-ischaemic injury and that earlier delivery would probably have avoided all brain injury. The material-contribution test was not required to establish causation of the brain injury itself.
5. For functional outcome, however, medical science could not identify the effect of each minute of hypoxia. The proposed five-minute aliquot theory was rejected as illogical, unsupported by adequate epidemiological evidence and impracticable. Because attribution was impossible rather than merely difficult, the claimant recovered 100 per cent of the damage caused by the hypoxic-ischaemic injury.
6. The claim against the Secretary of State failed. The claim against the hospital trust succeeded on breach and causation. Consequential matters were reserved.