Case law update: Webster (a child and protected party) via his Mother and Litigation Friend, Heather Butler v Burton Hospitals NHS Foundation Trust (2017)

The limitations of the Bolam principle and its application to cases involving consent were explored in the recent Court of Appeal decision of Webster. Applying Montgomery v. Lanarkshire Health Board (2015), the judgment made clear that it is no longer appropriate nor will it be a defence for the Defendant to contend that its clinicians were acting in accordance with the practice of a reasonable body of health professionals.

In Webster, case the Claimant was born on 7 January 2003 with profound physical and cognitive impairment, caused by a brain injury which occurred between 72 and 48 hours prior to delivery. It was agreed that, had he been delivered prior to 1609 on 4th January, he would have avoided these injuries. It was also agreed that there was a negligent failure on the part of the Consultant managing the pregnancy to identify the fact that an ultrasound scan carried out in November 2002 revealed certain abnormalities. The questions for determination at trial were what further scans should have been performed; the probable results and whether those results would have materially altered the subsequent management of the pregnancy, such that the delivery would have been expedited.

At first instance, the court concluded that, notwithstanding the admitted breach of duty, the claim failed on causation: even had further scans been performed, the results would not have been such as to have required an alteration in the management of the pregnancy. Specifically, a reasonable body of obstetricians would not have offered early delivery. The Court of Appeal did not agree. In a unanimous judgement, the Court of Appeal found that Ms Butler should have been advised that there was emerging evidence of increased risks associated with the abnormalities identified on the scans, albeit that this was based on a very small statistical base. Had Ms Butler been so advised, she would have elected to undergo an early delivery on 27 December 2002 and the Claimant would have been born intact.

Summary

This case affirms the patient-focused approach to consent established in Montgomery; it is for the patient to decide the risks and the Doctor must act as the advisor and not the decision maker. The advice given must be impartial, clear and deal with all alternatives available to the patient. The judging of whether those identified risks are material is a matter for the Court to decide and not the medical profession.