We are in a new and modern era of advice and consent which must be provided by health professionals following the landmark affirmation by the Court of Appeal in Sebastian Webster (a Child and Protected Party by his Mother and Litigation Friend, Heather Butler) v. Burton Hospitals NHS Foundation Trust  EWCA Civ 62 following Montgomery v. Lanarkshire Health Board  UK SC 11.
Although some professionals may have expected Montgomery to have limited implications it is clear from the decision in Webster that the implications are profound, both for those being treated and those giving them treatment.
In the modern era, it is no longer appropriate and will not be a defence for a health professional to contend that they were acting in accordance with the practice of a reasonable body of health professionals – indeed, not even if that body formed the majority. The role of a health professional is as an advisor and it is for the patient to make the decision.
The advice must be given when there are material risks arising out of any medical treatment. Such advice must be given in a clear and comprehensible way so that it can be understood. In giving the advice the alternatives must also be considered and importantly, the advice must be given in a dispassionate way and without seeking to pressurise the patient.
It is also clear that the concept of “medical treatment” includes medical treatment which has not been given – that is precisely what happened in Webster.
In Webster, the Appellant’s mother had an ultrasound examination undertaken which revealed that the fetus was small, there was disproportionate proportion between the head and abdominal circumference and there was slightly increased liquor (polyhydramnios). This should have resulted in repeated ultrasound scanning. Rather than carrying out any further ultrasound scanning the Consultant Obstetrician and Gynaecologist who was responsible for the mother’s care treated the pregnancy as an entirely uncomplicated one. In doing so he was negligent. If repeated ultrasound scanning had been undertaken then it would have been found that the fetus was dropping between birth centiles, the disproportion was continuing although narrowing and that there was continuing slightly raised excess liquor. It was the evidence of the Consultant Obstetrician and Gynaecologist that even with those features present he would not have undertaken further examination which would have been reassuring and accordingly he would not have changed his plan and allowed the pregnancy to proceed to attempt to achieve a natural delivery, his position being that a natural delivery was far safer, particularly for the fetus, than seeking to induce.
The mother, on the other hand, contended that at the critical time that the advice would have been given, she would have been at her estimated date of delivery, she was fed up with feeling unwell and had she been informed of any increased risks in delaying labour she would have wished to have been induced. The serious complexity in the case is the evidence as to the increased risks. Of the increased risks, it was found that the evidence supporting the same arising from the unusual combination of features which were present with this fetus was limited to an extremely small database and with the evidence of the increased risks only “emerging”.
Upon the basis of this evidence, the Court of Appeal found that the mother should have been advised that there was emerging evidence of increased risks, albeit based on an extremely small statistical base. That had she been advised of this, then she would have wished to have been induced. The mother had a degree in nursing and she was someone who was capable of making her own mind up in terms of medical advice – indeed, previously she had self-discharged, contrary to medical advice, after she had been feeling unwell upon the basis that she would be better cared for at home.
The Court of Appeal emphatically and unanimously came down on the side of the mother. In doing so, the Court of Appeal reversed the High Court decision which followed the principle in Bolam that the Claimant had not succeeded with liability upon the basis that in allowing the delivery to continue the Consultant Obstetrician & Gynaecologist would have been following the approach taken by a reasonable body of medical opinion.
The importance of Webster is that it demonstrates the wide ranging application of Montgomery. The sense that there may have been in some circles that Montgomery was in some way of limited application and would never be widely applied as a case is wrong – its implications are profound and health professionals must be aware of their duties in giving (and indeed, in not giving) advice and treatment.
It is clear that each case will be dependent upon its own facts and those will also include particular characteristics of the patient. That will result in uncertainty but such uncertainty is to be tolerated in order to give effect to Montgomery.
The central principles therefore which emerge from Webster and Montgomery are as follows:
(i) The duty on the part of health professionals is to take reasonable care to ensure that a patient is aware of the material risks of injury:
“In the law of negligence, this approach entails a duty upon the doctor to take reasonable care to ensure that a patient is aware of the material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk.”
(ii) The exercise does not depend exclusively on medical consideration:
“The existence of that entitlement, and the fact that its existence does not depend exclusively on medical considerations are important. The point of fundamental distinction between on the one hand, the doctor’s role in considering possible investigatory or treatment options and, on the other hand, her role in discussing with the patient any recommended treatment and possible alternatives and the risks of injury which may be involved”.
(iii) The reasonable alternatives or variance of treatments must be discussed:
“An adult person 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 variance in treatment. The test of materiality is whether in the circumstances of a particular case, a reasonable person in the patient’s position would be likely to attach significance to that risk or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
(iv) Bolam is no longer to be relied upon on issues of advice and consent.
(v) The questions of advice or consent and patients’ rights are not matters which shall be determined by health professionals according to their standards but the protection of patients’ rights is a matter for the Courts:
“The doctor’s advisory role cannot be regarded as solely an exercise in medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rest with the Courts, not with the medical professionals.”
(vi) The advice which is to be given must be given in a clear and comprehensible way and cannot be reduced to percentages. Furthermore, the advice must be given in a dispassionate way and without pressure being applied to the patient.
(References to each of the above are to be found in Montgomery but are conveniently set out by Lord Justice Simon in his analysis of Montgomery at paragraph 23-31 of Webster.)
It will be seen that following these decisions there needs to be a change in the approach by which advice is given and consent is obtained by health professionals in respect of medical treatment; this will necessarily entail in the first instance the training and education of health professionals to ensure that they are aware of their duties and responsibilities toward those whom they advise. It will no longer be enough to simply suggest that the health professional was seeking to act in the “best interests” of the patient.
It should also be appreciated that the foundation of the approach which has been taken in these cases has been upon the basis that individuals are now very much better informed in society generally as to what may or may not be available from professionals and the choices which they make are not dependent solely upon the advice from a particular professional; accordingly, it is suggested that this approach will have implications for advice which is given not only in the context of health but the wide ranging areas of advice giving by professionals.
The Appellant in Webster was represented by Satinder Hunjan QC who is:
- A tenant at Kings Chambers, Manchester, Birmingham and Leeds
- Head of Chambers of 4-5 Gray’s Inn Square, London
- A Deputy High Court Judge and Recorder
- Patron of the Child Brain Injury Trust
- He was voted Clinical Negligence Barrister of the Year (Law Magazine: 2015) and Sports Barrister of the Year (Finance Monthly Magazine: 2016)