COURT OF APPEAL TAKE UNUSUAL DECISION TO REVERSE TRIAL JUDGE’S FINDING ON LIABILITY IN CEREBRAL PALSY CASE

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By Kate McKinlay

 

In Webster v Burton Hospital’s NHS Foundation Trust [2017] EWCA Civ 62, the Court of Appeal confirmed that the ‘Bolam test’ no longer applied and that the trial judge misdirected himself.

The Court of Appeal found that the trial judge, Judge Inglis, should have directed himself according to the Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11.  However the Court of Appeal didn’t stop there. They went on to find that, had the relevant medical practitioner in this case, followed Montgomery and given the In Claimant’s mother the relevant information; she would have elected to have her baby induced on 27th December which would have avoided the brain injury and consequent disabilities that he now suffers from.

KEY POINTS

  • the ‘Bolam’test, (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, in case we had all forgotten, is definitely no longer good law
  • The correct test to apply is that of Montgomery v Lanarkshire Health Board [2015] UKSC
  • The effect of Montgomery is, in general terms that the treating physician is obliged to give the patient comprehensible information about any present risks, and the uncertain outcomes of different treatment options and to let the patient make an informed decision him/herself.
  • in circumstances where the trial judge made a finding that, had the mother been appropriately advised, she would have wanted to have the Claimant delivered by induction on an earlier date, it was within the Court of Appeal’s scope to reverse the decision on liability by finding that the admitted breach of duty was causative.

THE CASE AT FIRST INSTANCE

The facts of the case are briefly that by the time the Claimant was born on 7.1.2003 (at 42 weeks) he had suffered a hypoxic brain injury as a result of a short period of cord compression between 48 and 72 hours prior to his delivery. In November 2002 (at 34 weeks) a scan identified that firstly the foetus was small for its gestational age and secondly that the was polyhdramnios (excess liquor). Judge Inlgis made the following findings in relation to the significance of abnormalities at 34 weeks that still existed when she presented to hospital on her due date of 27.12.2002 :-

  1. The first passage (at §26) relates to Ms Butler’s evidence:-

“Having considered her evidence … I think that had the mother been advised that she should proceed to induction or that there were increased risks in waiting until 6 or 7 January, she would have wanted to be delivered. I think she was fed up with the pregnancy and with the lack of well-being and it was the due date that she had in mind. She would not have wanted it to be put off, since the prospect of induction was looming in any event.

  1. The second passage (at §33) relates to Mr Hollingworth’s understanding:-

Mr Hollingworth is an experienced obstetrician and gynaecologist. He was not justified in simply categorising the 18 November scan as normal. That he did so leaves the court in the unattractive position of having to find what further fortnightly scans would have shown when their absence is caused by his negligence. Mr Hollingworth’s principal concern was foetal nutrition for which he relied heavily on the doppler reading [the ultrasound of the foetal bloodflow] and would have continued to do so with subsequent readings. Although he said he understood the issue raised by the combination of polyhydramnios and an SGA foetus I find that he did not think that that combination shown on the 18 November scan was relevant at the time to the management of the pregnancy. Whatever he understood at the time about the combination as an indicator of possible problems that was not an understanding that management should be affected by it. If anything he was encouraged by the polyhydramnios, since the opposite, oligohydramnios, is the more frequently encountered problem, which may be a bad sign in that the foetus may not be growing as expected … Moreover, if he had the combination of factors present on the 18 November 2002 in mind as having significance for management his note would I think have said so and it does not. The main focus of Mr Hollingworth’s attention was on foetal development as evidenced by the normal doppler which demonstrated that there was not a placental problem. There were no other abnormalities in the foetus itself which were apparent, and none in the case to which he attached importance, hence the tick in his note.

  1. The third passage (at §§86-88) consists of the Judge’s views about the expert evidence of Professor Soothill (called by the appellant) and Mr Tuffnell (called by the respondent) and his material conclusions. (In setting out §§86 and 88 Simon LJ has divided the main conclusions up with capital letters for ease of reference (these do not appear in the original)).

86. [A] Since, as I have found in paragraph 33, Mr Hollingworth, though he may have had some understanding that the rare combination of SGA and polyhydramnios had significance as a predictor of problems, did not see the combination as shown by the 18 November scan as relevant to his decision about management, and therefore would not have been led by the further assumed scans to change the delivery date, the question is should he have done so. [B] It may be difficult to identify that a responsible body of clinicians should have been influenced about the date of induction when Mr Tuffnell himself attached no importance to the combination in his original report, even in the light of retrospective knowledge of the outcome. [C] Faced with an unusual combination of features it should be expected that a clinician in Mr Hollingworth’s position would do what he did not do: inform himself about the implications, and take his decision in the light of the information. [D] The information would be likely to include a list of possible anomalies and complications, which would not be avoided by an earlier date of delivery, but also an increased risk of perinatal mortality, including ante partum mortality, but with the statistical base extremely small: the information would not be accompanied by guidance, official or academic, that I have been shown, about management of the timing of delivery. [E] Professor Soothill has forcibly expressed the view that the balance in favour of delivery by 38 weeks in ending antenatal risk as against the reduction in the chances of complications of labour offered by waiting for spontaneous labour was very strong, so much so that he regarded waiting in these circumstances to be an unusual course, and one that was not justified. [F] Mr Tuffnell does not agree: he, like Mr Hollingworth, did not attach importance, from the point of view of management, to the unusual combination of features upon which reliance is now placed. [G] I nonetheless accept that there was a body of consultant obstetricians who would not be deflected from their normal conservative course by the emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features. 87. In the end, I come to the conclusion that the body of clinicians that would not be deflected from their usual conservative course could not be said to be acting irrationally or illogically. The advantages on their side of the argument of the chances of improved circumstances of labour underpin their approach, and I do not think it possible to categorise their position as in that unusual category of case that Lord Browne-Wilkinson had in mind in Bolitho. 88. [A] In the circumstances I do not think that the late addition to the case, namely the imperative of discussing the proposed course of events with Ms Butler, changes the outcome. [B] Professor Soothill’s proposal that discussion was required was based upon his view that continuing the pregnancy would be an unusual course for a clinician to take. But I do not accept that premise. [C] If a course were to be unusual, or attended by unusual risks, then discussion of the specific risk would be required. [D] I do not accept Mr Tuffnell’s view that the only thing that would call for an explanation would be a change of plan. I don’t think that was Mr Hollingworth’s view, because he accepted that having commissioned further scans he would have had to explain them to Miss Butler. [E] However, once he is not taking an unusual course, I would not expect a detailed discussion, for example of statistical risk, or of the risk of adverse outcomes which the management of labour could not avoid. [F] I do not think that anything would be required to be discussed with Miss Butler that would have led to a decision different from the one that Mr Hollingworth in fact took, namely to continue until the forty second week in order to achieve a more satisfactory labour.

As per [E[ and [F] above, at first instance Judge Inglis found that, applying the Bolam test, there was sufficient evidence (ie that from the Defendant’s expert, Mr Tuffnell) that Mr Hollingsworth approach was not unusual and did therefore fall foul of the Bolam test on the basis that there was nothing that he would have been REQUIRED to discuss with the mother, that would have led to a different decision by him.

THE APPEAL

Simon LJ roundly rejected Judge Inglis’s analysis of the law (as an aside it beggars belief that neither counsel for the Claimant or the Defendant appear to have address the Judge on this question, or if they did so, they did so incorrectly). Simon LJ sets out in paragraph 23 to 32 of his judgment the sections of the judgment in Montgomery that articulate the duties contained within the doctor patient relationship :-

  1. The judgment of Lord Kerr and Lord Reed (with whom 4 other members of the court agreed) set out emphatically why such an approach to the issue of medical treatment was wrong.
  2. Certain clear themes emerge from the judgment. First, a change of approach as to the nature of the doctor and patient relationship.

81. The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view [2015] UKSC 11 paragraph: 85of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. 82. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of 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. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

27.  Secondly, the extent of the patient’s right to information, which was addressed at [83].

… The doctor’s advisory role cannot be regarded as solely an exercise of 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 rests with the courts, not with the medical professions.

  1. The significance of the decision in Montgomery so far as the present case is concerned can be seen from a passage at [87] that set out the underlying basis for the decision.

 … 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 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.

  1. Three further points may be noted. First, the assessment of whether a risk is material cannot be reduced to percentages, see [89]:

“The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.”

  1. Secondly, the judgment also set out the importance of the dialogue between doctor and patient as part of the doctor’s advisory role, see [90].

… the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.

  1. Thirdly, it is clear that the Bolam approach, see Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, which decided that a doctor was not negligent if he or she acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art, is no longer appropriate. This is implicit from [84], [85] and [87], and explicit from Lady Hale’s judgment at [115] in the context of the doctor’s personal belief in the Montgomery case that it was not in the mother’s interest to have a caesarean section.
  2. In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear, as Lord Kerr and Lord Reed conclude at para 85, that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values [2015] UKSC 11 paragraph 115 her own assessment of the comparative merits of giving birth in the ‘natural’ and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide (St George’s Healthcare NHS Trust v. S [1999] Fam 26). There is no good reason why the same should not apply in reverse, if she is prepared to forgo the joys of natural childbirth in order to avoid some not insignificant risks to herself or her baby. She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision.

 

Kate McKinlay

14.02.2017

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