Helen Pooley reviews a Court of Appeal decision that reminds practitioners of the importance of the ‘Montgomery’ test

Background Facts

The Claimant child was born in January 2003. He had profound physical and cognitive impairment which had been caused by a brain injury which had occurred between 72 and 48 hours prior to delivery. An ultrasound scan had been carried out two months or so before the birth – it was apparent from the scan that the foetus was small for the gestational age and there was asymmetry in the circumferences of the head and abdomen. At this stage, C’s mother was under the care of a consultant obstetrician and gynaecologist.

Following this scan, the consultant did not note the anomalies. It was admitted he had acted negligently in failing to arrange further scans.

C’s mother was admitted to hospital around a month later feeling unwell – the next day was her expected date of delivery. She had assumed she would be delivered that day. C’s case was that the consultant should have offered the possibility of induction of labour on that due date which, if accepted, would have avoided the brain injury. The Defendant hospital’s case was that further scans would have provided reassurance but the anomalies relied on by C would not have given rise to the need for heightened vigilance or advice about dangers which might be avoided by induction.

First Instance Decision

At first instance, the judge found that if C’s mother had been advised that she should proceed to induction, or that there were increased risks in waiting, she would have wanted to proceed. The judge also found that the consultant was not justified in categorising the first scan (the one that showed the initial anomalies) as normal.

However, despite all of the above findings, the judge applied the Bolam test and concluded that a body of consultant obstetricians would not have been deflected from their usual conservative course and could not be said to have acted irrationally or illogically.

Issues On Appeal

On appeal, C argued that in light of the decision in Montgomery, the issue in this case was what advice should properly have been given to the mother and what would have happened in consequence.

The court agreed that following Montgomery, the Bolam test was no longer the correct approach. The consultant’s obligation, other than in cases where it would damage the patient’s welfare, was 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 on proper information.

Keeping this in mind, the question on appeal was whether the appeal court could assess the conclusion the judge would, or should, have reached on the issue of liability if he had adopted that approach. That involved identifying what information the consultant should have presented to the mother on her due delivery date and what her response would have been.

The appeal court found that the consultant should have told the mother that there was “emerging but recent and incomplete material showing increased risks of delaying labour in cases with [that] combination of features“. If the mother had been given that information, she would have wanted to be delivered on 27 December, even if the information had been couched in terms of contrary arguments in favour of non-intervention. That conclusion was supported by her clear evidence and her background (which included a degree in nursing).