To read part 1 click here.
The concept of the ‘Bolam Test’ was scrutinised recently in the landmark case of Montgomery –v- Lanarkshire Health Board, 2015.
Nadine Montgomery, who was a diabetic, was pregnant with a large baby. This meant that there was a 10% increase in the risk of shoulder dystocia (where the shoulders become stuck in the birth canal) during delivery.
With shoulder dystocia, there is an increased risk of harm to both mother and child, with the child being susceptible to brachial plexus or cerebral palsy.
Ms Montgomery’s Obstetrician took it upon herself to decide that if diabetic pregnant women were warned of the possibility of shoulder dystocia they would “invariably choose delivery by caesarean section” – which she deemed not to be in the mother’s best interests – despite the fact that the health risks associated with c-section births are miniscule in comparison.
Ms Montgomery was therefore not informed of the increased risk of shoulder dystocia, which subsequently occurred. Her baby was consequently born with both a brachial plexus and cerebral palsy. Her son, Sam, was born 16 years ago.
She brought a claim against the Health Board on the basis that they failed in their duty of care as she was not informed as to the risk of shoulder dystocia occurring, and as to the alternative option of having a c-section.
After a 16 year Legal battle, with the case being rejected on two occasions by the Scottish Courts, the case was heard recently at the Supreme Court in London. The Supreme Court overturned the decisions of the Scottish Courts, and ruled that Nadine Montgomery should have been told of the risk of shoulder dystocia. She was subsequently awarded damages of £5.25 million.
Prior to this case, Legal Practitioners faced a number of overlapping decisions which did not provide much clarity. In the case of Sidaway, 1985, the Bolam Test was used to decide if a body of competent Doctors would support the decision not to disclose the risk to a patient – with the Test surviving, but only by a narrow majority.
The significance of Montgomery is that the Supreme Court have unanimously (there were no dissenting Judges) overturned the case of Sidaway, which is now no longer ‘good law’ when looking at cases of informed consent.
As such all traces of the Bolam Test are now vanquished from cases involving informed consent. In other words, a medical Practitioner will no longer be able to argue that it was reasonable not to provide informed consent to a patient, on the basis that a responsible body of Practitioners would have acted in the same way.
Montgomery has now led to the Montgomery Test – which requires a Doctor to take reasonable care to ensure that a patient is aware of ‘material risks’. These are indentified as:
Reliance cannot be placed as to whether or not a group of Doctors believe that the risk should or should not be discussed with the patient.
Whether a reasonable person in the patient’s position would consider the risk significant.
If the Doctor knows (or should know) that the patient would consider the risk significant.
In Summary
The old paternalistic view that patients are simply passive recipients of care – and incapable of understanding and making decisions in relation to their medical care is gone.
There is no room for a legal Test (Bolam) which allows the medical profession to justify a restrictive approach to disclosure of risk. It is this change in philosophy which signals the end of Bolam in cases of informed consent.
The Bolam Test is however still valid in other areas of clinical and medical negligence.
The move to a rights-based approach protects the patient’s right to make life-changing decisions on the basis of all significant information, and it is surely right that it is not for the medical profession to decide whether a particular risk should be disclosed – as it is not a matter that necessarily requires clinical expertise.
For more information or to contact a member of the Clinical Negligence team click here.
