10 years since the Montgomery judgement – what has it meant for women giving birth?
In March 2015, the Supreme Court made a landmark ruling in favour of a woman, Nadine Montgomery, who said that her obstetrician should have informed her of her particular risks in childbirth. Medical negligence experts Maria Repanos and Elizabeth Maliakal of Hudgell Solicitors explain what the ruling meant for women’s choices during birth
It is now 10 years since the Supreme Court refined the standard for informed consent with its judgment in the landmark case of Montgomery v Lanarkshire Health Board (2015).
Nadine Montgomery was a mother whose baby was born with cerebral palsy arising from a lack of oxygen during a shoulder dystocia birth (in which the shoulder is stuck behind the pubic bone after the head has been born). Mrs Montgomery was small (about five feet) and had diabetes, but the obstetrician had not warned her that this carried a greater risk of complications during a vaginal delivery. This was because he thought that, if she was informed of the risk, she would opt for a caesarean, and he did not believe this was in her best interest. She argued that had she been informed of the increased risk to her baby, she would indeed have requested a caesarean section – and would have avoided the complication that led to her son’s brain injury.
After losing in the lower courts, Mrs Montgomery went all the way to the Supreme Court, which ruled in her favour. The judges supported her argument that doctors should provide a patient with all the information to allow them to make a balanced judgement between different options.
The judgement meant that the law on consent in medicine changed from being doctor-focused to patient-focused. The change affected all medical settings, but it’s particularly relevant in maternity, where consent may have to be sought for different interventions throughout labour and birth.
From now on, doctors would have to discuss material risks with patients when considering treatment options. A material risk is one deemed to be important to the individual patient – so it is essential for the doctor to find out what matters to each patient. The Supreme Court said that doctors would need to make sure the patient understood all the issues involved in making a choice, and that they should take time to explain properly rather than bombarding the patient with technical information.
The Montgomery ruling was later updated in another case, McCulloch v Forth Valley Health Board (2023), which focused on the obligation to inform patients about reasonable alternative treatments. The Supreme Court decided that it was up to healthcare professionals to decide whether an alternative treatment was reasonable. In other words, if they didn’t tell the patient about an alternative treatment, because they thought that treatment was not supported by medical evidence, they wouldn’t be considered negligent.
What does informed consent mean in practice?
Since the Montgomery ruling, health professionals have been duty bound to provide relevant information to patients so they can make informed decisions about the treatment or procedures they receive.
Examples of situations where Informed consent may be needed include decisions about:
·Whether to opt for caesarean section
Whether to opt to have labour induced
Whether to have an episiotomy (this is where the midwife or obstetrician makes a cut in the perineum and vaginal wall to enlarge the opening for the baby to pass through).
Mothers must be fully informed of all birth options available to them and advised about the risks and benefits of each option, specific to their own unique situation. If a patient is not fully informed of the possible risks and benefits of a particular procedure or treatment, and any alternative options available to them, they may have been denied their right to make an informed decision. If something goes wrong as a result of the patient not having the information to make an informed decision (as happened in Nadine Montgomery’s case), they might be able to bring a clinical negligence claim relating to a failure to obtain informed consent.
What can you expect from medical professionals when you’re having a baby?
Before carrying out any treatment, medical professionals should:
Have a conversation with you to make sure you are fully informed about their treatment options, and the benefits and risks of each option, or of having no treatment at all
Take extra steps where necessary to accommodate your ability to understand consent such as possibly providing an interpreter, if English is not your first language
Allow you to ask questions, and provide honest and detailed answers.
Not rush you into making a decision about surgery and treatment.
Encourage you to consider your options and talk to family, friends or someone you trust.
Allow you change your mind
The only time health professionals do not require consent to treatment is when someone is unable make a decision. While this is extremely rare, it could arise because a person lacks capacity to make that decision or because it is an emergency, and the patient is unconscious. In the latter situation, healthcare professionals must only provide treatment and care that is required for the patient to stay alive and the treatment must always be in their best interests.
Here are some examples of where a failure to seek informed consent causes problems:
Consulting fully with mothers/parents on birth/delivery plans
Informing parents of the potential risks or benefits of procedures or treatment
Warning of potential side effects
Informing of alternative treatment options
Warning of potential complications during or following surgery
Providing accurate information on the expertise of surgeons
Offering alternative options other than surgery
The General Medical Council and Nursing and Midwifery Council both provide guidance to health professionals about consent. The key point is that patients and healthcare professionals make decisions together.
When should I seek legal advice?
You might feel that your healthcare provider didn’t obtain your informed consent before your treatment. But you can only bring a legal claim if you were injured as a result of the treatment you received. You have to prove that you were not informed of the material risks of the procedure, or the alternatives, and if you had been, you would have made a different decision that would have resulted in you not being injured.
You will also need the opinion of an independent medical expert to show your consent wasn’t properly obtained. The proof that you would have made a different decision if your consent had been properly obtained is based on the evidence you yourself give.
If you think that you have experienced an injury as a result of not giving your informed consent for medical treatment, then it’s a good idea to seek independent legal advice as soon as you can.
Hudgell’s Solicitors are one of the BTA’s six Trusted Legal Partners (TLPs). For more information about them, and about our other TLPs, please visit our Trusted Legal Partners page.
