Almost three years ago, in March 2015, I wrote about the landmark decision in Montgomery v Lanarkshire Board (Scotland) [2015].

Since then, I have also written about some of the many decisions which have followed in which the principles on informed consent which were first set down in Montgomery have been applied. The latest in this string of cases is Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] in which judgment was handed down by the High Court earlier this month.

Although Montgomery should be well known to all clinical negligence lawyers, a short reminder of the facts of the case is probably useful at this point. Mrs Montgomery was an insulin dependent diabetic and became pregnant with her first child in 1999. It was well known at that time that diabetes mellitus in the mother carried a risk of a larger than average baby. The risk of shoulder dystocia occurring during labour was also higher. Shoulder dystocia can pose a significant risk to both the baby and the mother. Mrs Montgomery was classed as high risk and was closely monitored throughout her pregnancy. Despite this, she was not told of the 9-10% risk of shoulder dystocia occurring in labour or given any other options in respect of the delivery of her baby.

Mrs Montgomery attempted a natural delivery but the baby’s shoulders duly became lodged in the birth canal. Mrs Montgomery’s treating doctor attempted to complete delivery and the baby boy was eventually pulled out some 12 minutes later. During the course of the delivery, he was starved of oxygen, suffered a brachial plexus injury and was later diagnosed with cerebral palsy.

At paragraph 87 of its judgment, the Supreme Court stated:

“An adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

The Supreme Court found that Mrs Montgomery should have been advised of the risk of shoulder dystocia and that if she had been, she would have instead opted to give birth by caesarean section. Her appeal was therefore allowed.

The newly decided case of Hassell v Hillingdon [2018] revolved around treatment which Mrs Hassell received at the defendant’s hospital between June and October 2011. Mrs Hassell was suffering with ongoing neck and upper arm pain and underwent C5/6 decompression and disc replacement surgery on 3 October 2011 under the care of Mr Shaun Ridgeway, spinal orthopaedic surgeon. During the course of the procedure, Mrs Hassell very unfortunately suffered a spinal cord injury which rendered her paralysed and permanently disabled. The value of the claim was agreed at £4.4 million before the trial but breach of duty and causation remained in dispute. Mrs Hassell argued that she was not warned of the risk of paralysis nor was she offered conservative treatment such as physiotherapy prior to undergoing the procedure. It was her case that has she been warned of the risk, she would have considered it too high and would not have gone ahead with the surgery. She also argued that Mr Ridgeway failed to carry out the procedure with reasonable care and skill. The Trust stated that Mrs Hassell was properly warned of the risks and that the surgery was carried out with reasonable care and skill.

The decision is an interesting one because it largely turned on what Mr Ridgeway said, or rather didn’t say, in his witness statement and during the course of his evidence at trial. In addition to this, in correspondence he had written prior to the surgery, he had not properly set out the risks of paralysis.

Mr Justice Dingemans found that Mr Ridgeway had erroneously concluded that Mrs Hassell had already undergone physiotherapy for her neck pain and because of this mistake, did not properly discuss conservative treatment with her. Had he discussed conservative treatment options with her, Mrs Hassell would have been able to correct his incorrect assumption.

Further, Mr Justice Dingemans at paragraph 68 of his judgment stated the following:

“Secondly it was apparent that, whatever Mr Ridgeway’s strengths as a surgeon when carrying out the operation, Mr Ridgeway was not a good communicator about the risks of operations. I make this finding because when he gave evidence in chief about the risks of the operation, he did not include DVT or PE which he said in his witness statement he would have mentioned…….Even making proper allowances for the fact that Mr Ridgeway was in the witness box and not talking to a patient it was plain that his belief about what he would invariably have said was not reliable……I also note that Mr Ridgeway did not identify in any of the earlier correspondence after the operation that the letter dated 1 July 2011 contained an omission about the risks of paralysis even though he said he had mentioned these when talking to Mrs Hassell. …”

Mr Justice Dingemans was of the view that Mrs Hassell had given clear evidence that she had not been warned of the risk of paralysis. At the time of the surgery, she was a mother to three young children and was working full time as head of year in a school and would have been very concerned about such a risk given her personal and professional situation. In addition, she had a good recollection of Mr Ridgeway discussing the risk of a hoarse voice following the surgery which was relevant to her as a teacher who might need to shout across the playground on occasion. The judge found that had the risk of paralysis been discussed with her, Mrs Hassell would have been concerned about it, would have recollected it and would have asked further questions.

Mrs Hassell had signed a consent form on 3 October 2011 which discussed the risk of paralysis but she was rushed in doing so and the judge found that this did not constitute informed consent.

Ultimately, Mr Justice Dingemans concluded that Mrs Hassell had not had the risks of paralysis explained to her and that had this been discussed with her, she would not have gone ahead with the surgery:

“…I accept Mrs Hassell’s evidence and find that if Mrs Hassell had been given the relevant information about the risks of paralysis and conservative treatment options, Mrs Hassell would not have had the operation on 3 October 2011. This is because Mrs Hassell said that if she had been told that having conservative treatment was an option, and that surgery carried a risk of 1 in 500 to 1 in 1,000 of permanent paralysis, she would have opted for conservative treatment….” [paragraph 77]

The judge was not able to decide what, on the balance of probabilities, had caused the spinal cord injury during the surgery. It could therefore not be established that Mr Ridgeway did not perform the surgery with reasonable care and skill. However, as the judge had already concluded that the risk of paralysis was not discussed with Mrs Hassell and that she would not have undergone the surgery if it had been, it was not necessary to show that the surgery was performed negligently.

Judgment was therefore awarded to Mrs Hassell in the previously agreed sum of £4.4 million.

This case again shows the importance of clinicians properly discussing the risks of surgery with their patients together with less invasive options for treatment (where such options exist) and of recording that they have done so. It is not enough simply to say that it would be their usual practice to discuss those risks, they must be able to show that they actually did so or informed consent is unlikely to be established.