UK adopts Australian Law to determine whether a warning of risks of treatment options should be given
The UK has recently altered its position in relation to the important question of a doctor’s obligations to warn their patients concerning risks of treatment.
Preceding the decision in Montgomery v. Lanarkshire Health Board  UKSC 11, delivered on 11 March 2015, the UK had long maintained its acceptance of the so-called Bolam principle, reiterated in the mid 1980s by its House of Lords decision in Sidaway, that the question of what information a doctor was obliged to disclose to their patient, concerning risks involved in proposed treatment was essentially a matter determined by the medical profession. It was a defence to any claim that a relevant risk had not been disclosed, to demonstrate that other reasonable doctors would not have informed their patients of such risk.
The Supreme Court in Montgomery reversed this position and adopted the position that has existed in Australia since 1992 and our landmark decision in Rogers v. Whittaker.
The position in the UK, as in Australia, is now that a doctor’s obligation to disclose information relating to proposed treatment, including as to its risks, is determined by the question of whether the patient would be likely to attach significance to it in deciding whether or not to proceed with such treatment. If the patient would be likely to attach such significance, the doctor is obliged to disclose such information including as to the risk.
The test is “patient driven” as it depends on whether they would consider the relevant risk or other information significant in making their decision, rather than being ‘doctor driven‘ by whether the doctor thinks that they ought to attach significance.
There is some irony in the UK altering its position, given Australia has moved away from such ‘patient driven’ position in relation to other non-advice aspects of medical care, by the Civil Liability Acts.
The UK case is also interesting for obstetric care more generally.
The risk about which it was found warning ought to have been given, was the risk shoulder dystocia may occur if Mrs Montgomery delivered her child by a ‘natural’ or vaginal birth. It was found that Mrs Montgomery would have attached significance to this risk if warned of it. This had not occurred and so such lack of advice was found to have been negligent.
Mrs Montgomery was relatively small and a diabetic. While neither of these factors were particularly rare, they did modestly increase the risks of difficulty if such a dystocia occurred. Mrs. Montgomery’s evidence was accepted that if warned of the risk of shoulder dystocia, even though this was unlikely and unpredictable, she would have elected to give birth via an elective cesarean section rather than a vaginal delivery. Interestingly, the Supreme Court reversed the trial judge’s conclusion on this, which had been that a warning as to the risk of shoulder dystocia would not have led to the mother electing to proceed via a cesarean delivery.
This is a very common scenario in day-to-day obstetric care. There are very many patients of small stature and diabetic [whether gestational or otherwise]. The case appears to establish that in the UK at least, such patients need to be warned of a risk of shoulder dystocia because it ought to be accepted that such risk may be of significance to the mother in deciding whether to proceed via a natural delivery or ‘elect’ to have a cesarean.
The facts are an excellent example of the difference between the Rogers test and the Bolam approach.
It is also an illustration of why the Rogers test has been so unpopular amongst some medical practitioners who, rightly or wrongly, say the emphasis on patient autonomy potentially leads to patients making ‘wrong’ or poor decisions based on a flawed assessment (or in truth weighting) of the risks relating to their treatment options.