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Montgomery v Lanarkshire Health Board – Doctor’s Duty to Inform

The fairly recent case of Montgomery (Appellant) v Lanarkshire Heath Board (Respondent) [2015] UKSC 11 has brought to the forefront, the issue of patients being informed of risks and the alternative options available to them. This case was initially heard in the Court of Session, before being appealed in the UK Supreme Court.

In this particular case, a diabetic woman was due to give birth to a baby. The appellant gave birth naturally to her son, who was born with severe disabilities. Due to her type of diabetes, there was an increased risk of a condition known as shoulder dystocia (the condition which caused the severe disabilities). The doctor did not make the appellant aware of this possibility or the risks involved in her having a natural birth. Had the appellant been made aware, she may have elected for a caesarean section birth, or gone into the natural birth knowing the risks. The doctor also failed to act upon the risks that were made evident by a cardiotocograph. It was held by the Supreme Court that an appeal should be allowed.

The doctor’s belief was that it was “not in the maternal interest for woman to have caesarean sections”. One could deduce from this that part of the problem was the doctor’s own opinion overriding what should have been of paramount importance; her duty of care towards the patient, and ensuring that the patient was fully informed. Lady Hale stated that it would appear that the doctor here felt “that vaginal delivery is in some way morally preferable to a caesarean section” and this is perhaps behind the doctor’s reasoning behind not fully disclosing the risks.

This case raises a number of questions when it comes to patients making informed decisions, and being given the information to allow them to make such a decision. There are situations where a doctor could rightfully not give the patient information, such as when consent cannot be given due to the necessity of an operation if, for example, they are incapacitated. A patient can elect to not be made aware of the risks, and therefore accepts the risk should they elect to go ahead uninformed. Additionally, if to tell the patient the risk would affect their health, a doctor may decide not to tell them the risk.

It seems now that, in order to protect themselves, as well as uphold a duty of care, doctors may now have to be more informed, and keep their patients informed, of any and all risks that may come from any treatment. No credence should be given to any notion of the doctors own personal views being allowed to cloud sound medical reasoning.

However, none of this should deter patients from asking questions of their doctor, before any treatment or surgery. While this case implies that the burden is on the doctor, no one should go into a situation like this without making themselves as informed as they can.

Author: Steven McTaggart, LLB, Dip LP

The views expressed are those of the author and do not necessarily reflect the views of the firm.

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