The Court of Appeal has widened the application of the test for informed consent, ruling that in all cases patients must be consulted and advised about their proposed treatment, options, risks and benefits – even if the care is a ‘do nothing’ approach.

In W (a child and protected party, by his mother and Litigation Friend, Butler) v Burton Hospitals NHS Foundation Trust, the Court of Appeal allowed an appeal of the claimant against the previous finding in favour of the defendant hospital on causation of the claimant's birth injuries.

The court found that the judge had based his judgment as to whether there had been negligence on the approach set out in Bolam v Frien Hospital, by looking at whether the consultant had acted in accordance with a responsible body of expert medical opinion. However, this was no longer the correct approach and the decision in Montgomery v Lanarkshire Health Board was the correct approach to use.

The claimant, W, was born with cerebral palsy. It was agreed between the parties that his disability had been caused by a brain injury which had occurred 48 to 72 hours prior to his birth and that had he been delivered at least three days earlier, as was alleged should have been the case, he would have avoided the brain injury.

The liability issues in the case revolved around the management of W’s mother’s antenatal care by her obstetrician at the defendant’s hospital after an ultrasound when W was 34 weeks. This had been arranged because of a previous observation that the placenta was low and therefore in a difficult position. The scan in fact resolved that particular concern, but identified that W was small for his gestational age. It also identified some asymmetry and polyhydramnios. When the obstetrician reviewed W’s mother following the scan, he made no note or mention of the fact that it identified that W was small for his gestational age, or the other features, and simply made a plan to review W’s mother at 41 weeks.

It was alleged on behalf of W that there was a failure to consider the potential significance of the finding of a small baby for the gestational age and arrange further ultrasound scanning, and this was admitted.

In fact W’s mother felt unwell around the time of her due date and reattended the hospital. It was expected that the baby would be delivered. She was reviewed by the same obstetrician who made no mention of the combination of abnormalities on the 34 week scan (albeit that this was a rare combination) or of the possible risks to the baby given the presence of these factors and the benefits of early delivery. W’s mother was discharged without advice to consider induction and it was some 10 days later before W was delivered – by which time he had sustained the serious brain damage.

Given the extent of agreement between the parties, the case ran to trial mainly on the issue of what would have been shown if further ultrasound scanning had taken place and what should have happened as a consequence.

In coming to his decision, the judge followed the approach in Bolam v Frien Hospital and found for the defendant on the basis that the defendant’s obstetrician had acted in accordance with a responsible body of expert medical opinion in terms of not proceeding with an induction when W’s mother reattended the hospital. He accepted the defendant’s case that the consultant would have been reassured by further scans and examination and not felt a need to proceed with induction.

An appeal was brought on behalf of W where it was submitted that in light of Montgomery v Lanarkshire Health Board, the judge had used the wrong approach and the issue was no longer whether a reasonable body of medical opinion would have followed the same course of management, but what advice should properly have been given to W’s mother, and what would have happened as a consequence. Montgomery makes clear that the doctor's obligation (apart from in cases where it would damage the patient's welfare) is to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that would affect their health and well-being based on proper information. The significance of the risks and uncertainties, including the possibility of alternative treatment, was sensitive to the characteristics of the patient.

The issue therefore was not whether the obstetrician’s management plan (without consultation with W’s mother) was one that would be supported by a responsible body but what information and advice he should have offered to W’s mother when she reached her due date given the unusual but potentially significant combination of features on the earlier scan. The Court of Appeal accepted that there was 'emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features' and that if W’s mother had been given that information, she would have wanted to be delivered at or around the due date rather than wait because of the risks of delay, even though there were reasons to support delaying intervention. The court specifically found that ‘this conclusion is supported by her clear evidence (that if there had been ‘any suggestion of risk I would have wanted him to be delivered’), her background (a university degree in nursing) and her willingness to take responsibility for her pregnancy’. That decision would have resulted in W being delivered before sustaining his brain injury and on this basis the appeal was successful and W will now recover damages (to be assessed).

Philippa Luscombe, a partner in the clinical negligence team at Penningtons Manches LLP, comments: “This ruling widens the scope of cases to which the Montgomery test should be applied. To date, the Montgomery approach has been used in cases involving allegations of a lack of informed consent to actual treatment – whether the patient was given the appropriate options and relative risks / benefits. This case confirms that in fact the requirement to give full information about the risks and benefits of planned medical care (and options) applies at all stages of medical treatment. It was not about whether W’s mother consented to conservative management or even whether conservative management was a reasonable option, but whether she was advised of the option of induction and the risks to her baby if she did not proceed to an induction at this stage. The onus is placed firmly on medical practitioners to discuss with patients their proposed treatment and options, whether that treatment is active or conservative. We are likely to see more clinical negligence claims arising out of similar circumstances where patients have not been advised of factors relevant to their care and / or presented with options.”