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The Supreme Court. Hilary Term [2015] UKSC 11 On appeal from: [2013] CSIH 3; [2010] CSIH 104

Also see PRESS SUMMARY (the full judgment is 37 pages).

The Supreme Court has unanimously allowed this appeal. Central to this judgment is that there is an increasing culture of autonomy that include considering the 'values' that a patient ascribes to that particular medical procedure. But additionally, patients now accept there are risks associated with all treatment options. The doctor must 'take reasonable care to ensure that a patient is aware of material risks that are inherent in treatment'. A risk is 'material' when a reasonable person attaches any significance to such treatment, or if a doctor considers their patient should attach significance to such treatment.

As background to the clinical issues, the appellant Nadine Montgomery, gave birth to her baby in 1999 at Bellshill Maternity Hospital, Lanarkshire. Sadly, her baby was born with serious disabilities. If women have diabetes, they are more likely to have large babies with a 10% risk that the shoulders of the baby are too wide (shoulder dystocia) for a vaginal delivery. Mrs Montgomerie has diabetes. Dr McLellan was responsible for the care of Mrs Montgomery. It was the policy of Dr McLellan not to advise routinely diabetic women about shoulder dystocia. It was her view that Mrs Montgomery would have chosen a caesarean section. However, 'Dr McLellan ought to have advised Mrs Montgomery of the substantial risk of shoulder dystocia' (PRESS SUMMARY). The risks of a caesarean section for mother and baby are very small.

As background to the law, it was judged that the Bolam test ('whether the omission was accepted as proper by a responsible body of medical opinion') was inapposite as this case departed from purely medical matters. 'Values' should be taken into account during the decision making process, particularly when considering issues such as pregnancy.

When the case was first heard, both the Lord Ordinary (any judge in the Outer House Court of Session) and the Inner House of the Court of Session held that Mrs Montgomery had not shown that, had she been advised of the risk, she would have elected to undergo a caesarean section.

But when appealed to The Supreme Court of the United Kingdom, Lord Kerr and Lord Reed argued that before any treatment, a doctor has a duty to inform the patient of any 'material' risks. The therapeutic exception, whereby the doctor is exempt for disclosure because such would pose a serious threat to the patient, 'should not be abused'.

Dr McLellan was 'an impressive witness'.