Stepping on from Montgomery: AXM v. Southampton NHS Trust

Written by: John de Bono KC
Published: 24 January 2020

  1. On 2 December 2019 Martin Spencer J approved a settlement of £1.35m in this cerebral palsy case which was compromised without any concession of liability from the Defendant. I represented the Claimant[1]. A review of the facts highlights the continuing uncertainties about how far the decision in Montgomery really goes. At the same time this case should be seen as progress for claimants and no doubt others will follow.

Facts

  1. The claimant was born in 2006 and is now 13. He is profoundly disabled with cerebral palsy. This was the result of a venous sinus thrombosis in the first 24 hours of life. It was agreed that the venous sinus thrombosis was a non-negligent complication of an instrumental vaginal delivery by forceps. There was no dispute that had he been delivered by elective Caesarean section he would have avoided brain injury.
  1. This was his mother’s first pregnancy. Her evidence was that she had always wanted to have a Caesarean section but had never been offered one. She was of short stature, at 4’ 11” and was referred for consultant care under the Trust’s policy. Liability centred on the appointment she had with the Consultant Obstetrician in February 2006 when she was about 20 weeks pregnant. She thought that there would be a discussion about whether she wanted a Caesarean section but she was told by the consultant that there was no reason not to be planning for a vaginal delivery. Perhaps understandably, she did not challenge him. From this date on, whilst she continued to want a Caesarean section, she was never offered one and did not believe she was allowed to insist.

The arguments

  1. Our case was that delivery by an elective Caesarean section was a ‘reasonable alternative treatment’ and should have been offered by the Consultant Obstetrician at the antenatal appointment in February 2006.
  1. We put this argument in two ways. Firstly our expert obstetrician, Gerald Mason, advised that there was an increased risk of failure to progress during labour for a short woman, under 5’ in height. If that led to a need to an emergency Caesarean section then the risk of the section causing harm to either mother or baby would be greater than had they would have been in a planned, elective Caesarean delivery. His view was that these issues should have been discussed with the Claimant’s mother.
  1. Our second argument was that regardless of whether the risks of elective Caesarean section were different from a vaginal delivery, a Caesarean was nevertheless a ‘reasonable alternative treatment’. It should therefore have been ‘on the menu’ and discussed in the antenatal clinic.
  1. Supposing that the obstetrician in February 2006 had indeed offered an elective section. It was within his power to do so and had he chosen to do so no one would have criticised him. Imagine if the mother or baby had been injured as a result of an elective section and had then tried to argue that it was unreasonable to have offered this mode of delivery. You can be confident that the Defendant would have argued that it had been ‘Bolam’ reasonable to have offer the elective Caesarean.
  1. If it would have been reasonable for the Consultant to offer an elective Caesarean then it is hard to see how it could have been anything other than a ‘reasonable alternative treatment’ for the purposes of Montgomery.
  1. The Defendant argued that ours was a different scenario to Montgomery. In that case there had been clearly identifiable risks with the proposed vaginal delivery because Nadine Montgomery was both short and diabetic. She had been entitled to know of the risks and make a choice for Caesarean rather than vaginal delivery. The Defendant’s expert, Derek Tuffnell, said that in the present case there was no evidence of a greater risk of injury to the baby as a result only of his mother’s short height. Accordingly, on the facts of this case a Caesarean section was not a ‘reasonable alternative treatment’ and, because the risks were the same, there was no obligation to offer a choice.

Discussion

  1. There have been cases where claimants have sought to apply Montgomery in the midst of decision making in the heat of the moment on the labour ward. Here there appears to have been a reluctance by the court to apply Montgomery – see for instance Tasmin v Barts and ML v Guy’s. It ought to be easier to persuade the court of the primacy of a mother’s wishes in the context of a purely elective decision made months before a due date but I am not aware of any decided case where, as distinct from Montgomery, it has been argued that there was a right to the option of an elective Caesarean in the absence of any particular medical indication.
  1. I suspect that the factor that persuaded the Defendant to settle this case was that the mother’s height which was at least arguably a reason for choosing a Caesarean rather than a vaginal delivery, even if they doubted whether in fact this carried any extra risk.
  1. My own view is that Montgomery represented a sea-change, the full implications of which have not yet been recognised either by the medical profession in general (with some notable exceptions) or the courts. The whole point of Montgomery is that where there is a choice to be made it is for the patient to make it, not the doctor.
  1. Regardless of her height, what was the problem with this mother having a Caesarean section if that is what she wanted? Sure, there were risks associated with a Caesarean but there was no evidence from either expert that the risk was less with a vaginal delivery. Mr Tuffnell did not suggest that it would have been negligent for the obstetrician to have agreed to a section.
  1. The problem remains that the Supreme Court left unresolved the question of who decides what is a ‘reasonable alternative treatment’ in any particular case. Is that issue to be resolved by reference to what doctors consider the reasonable options to be, or patients?
  1. It would be unfortunate, and a backward step, if we ended up with Montgomery reinterpreted through Bolam – in a position where the definition of a ‘reasonable alternative treatment’ is determined on the basis of what a reasonable body of doctors would consider it reasonable to have offered.

Does Montgomery only apply where risks are known/ calculable?

  1. Montgomery requires a doctor to give a patient the option of any reasonable alternative treatment. The decision, founded on a long-delayed recognition of the importance of patient autonomy, would not make sense if it was limited to an obligation only to set out the risks of alternative treatments.
  1. Imagine a scenario where there is an option of a new surgical technique but where, precisely because it is novel, the risks are not known so cannot be compared to the traditional technique. Is the patient to be deprived of a choice between two options because the respective risks are not known?
  1. The point is important because Defendants in caesarean section cases often try to argue that there is only an obligation to offer a section where there is a particular and identifiable risk from vaginal delivery (as was the case in Montgomery). I think that this is to misread Montgomery.
  1. Such Defendants tend to refer to Duce v. Worcestershire Acute Hospitals NHS Trust [2018] EWCA 1307. In Duce the Court of Appeal rejected an appeal by a claimant who said that she should have been warned of the risks of developing chronic post-surgical pain following a hysterectomy. In the lead judgment Hamblen LJ rejected this argument. He said in relation to Montgomery:
    1. The nature of the duty was held at [87] to be:

“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.”

    1. In the light of the differing roles identified this involves a twofold test:
      1. (1)  What risks associated with an operation were or should have been known to the medical professional in question. That is a matter falling within the expertise of medical professionals [83].
      2. (2)  Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine [83]. This issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone [84-85].
  1. I have added the necessary emphasis to the extract above. It is important to note that the Montgomery duty is twofold: a doctor must advise of any material risks but he or she must also advise of any reasonable alternative or variant treatments.
  1. When reading Duce it is important to bear in mind that this was a case about risks. The claimant’s own argument was that she should have been advised of a particular risk of post-surgical pain. Duce was not a case about whether alternative treatments should have been offered. Duce is therefore an important authority about what risks a patient should be told about. Duce is not authority for the proposition that alternative treatments need not be offered to a patient where the risks of that alternative treatment are either the same as the proposed treatment or unknown.

Conclusion

  1. The issue of what is meant by ‘reasonable alternative treatments’ remains unresolved for the time being. One day a court is going to have to rule whether patient autonomy really means what it says, in particular is a woman obliged to go through labour and give birth vaginally or does she have an alternative[2]? On the way we are likely to see an increasing number of cases where the arguments are more nuanced and there are particular reasons, whether maternal height or otherwise, why a woman would have preferred to have a caesarean but was not offered one. AXM is a step on that path.

 

Footnotes

[1] I was instructed by Paula Barnes of Lester Aldridge LLP.

[2] This may be less of an issue going forward because RCOG Guidelines from July 2015 now suggest that a woman is entitled to a CS if she wants one.