I begin with some sad news. Richard Nussey, who retired from practice last year, and who will be known to many of you, passed away this month, after a long illness. He will be sadly missed by all of us.
On a happier note Farrar’s Building PI Group are delighted to announce that Rhiannon Jones has been appointed Queen’s Counsel. We wish Rhiannon all the best for her future practice as a Silk.
In this month’s Newsletter Clive Thomas considers what information a doctor must now give his patient in the light of the Supreme Court decision of Montgomery.
The Case Law Update was prepared by Joel McMillan.
By Clive Thomas.
In Montgomery v Lanarkshire Health Board, (Scotland)  UKSC 11 the Supreme Court has clarified the law on cases involving consent to medical treatment.
In 1999 Mrs Montgomery, who was diabetic, was expecting her first child. Woman who are diabetic are likely to have babies that are larger than normal with a concentration of weight around the baby’s shoulder area. Mrs Montgomery was also small in stature, measuring just over five feet in height. As a consequence of her diabetes Mrs Montgomery’s pregnancy was considered to be of high risk thus warranting extensive pre – natal monitoring.
Mrs Montgomery’s claim, (in part), was that she was not advised as to the risk of shoulder dystocia, (an inability of the baby’s shoulders to pass through the pelvis), nor was she advised of the possibility of delivering her child via a caesarean section. The risk of shoulder dystocia was put at 9 -10 per cent. During the delivery shoulder dystocia occurred which lead in turn to the occlusion of the umbilical cord . As a consequence of being deprived of oxygen Mrs Montgomery’s baby was born with severe disabilities.
Having followed the majority approach of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital  AC 871 the Court of Session rejected Mrs Montgomery’s claim. Mrs Montgomery’s claim also failed on causation it being held that even if she had been advised as to the risk that her baby may suffer from shoulder dystocia, she would not have chosen to have a caesarean section.
The Supreme Court allowed the appeal and in so doing took the opportunity to clarify the law as to the issue of consent in clinical negligence cases.
Sidaway v Board Of Governors Of The Bethlem Royal Hospital
The classic formulation as to the standard of care expected of a medical practitioner was set out by McNair J in Bolam v Friern Hospital Management Committee  1 WLR 582. The “Bolam Test” provides that a clinician is not negligent if he/she has acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art. In Sidaway the House of Lords had to consider if the same test should be applied in respect of those cases where there was a failure to advise a patient as to the risks of undergoing treatment. The majority view was that the “Bolam Test” should be applied in failure to warn cases. Thus if a clinician failed to advise a patient as to the risk inherent in undergoing treatment that clinician would be liable to a finding of negligence unless there existed a responsible body of medical practitioners that would support his conduct.
However, as was said by Lord Kerr and Lord Reed in paragraph 57 of Montgomery it would “ be wrong to regard Sidaway as an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment”. In Sidaway it was only Lord Diplock who provided a largely unqualified endorsement of the application of the “Bolam Test” in failure to warn cases. Indeed Lord Scarman took a very different approach by taking as his starting point “the patient’s right to make his own decision, which may be seen as a basic human right protected by the common law”, (p882). Lord Scarman held that a doctor was under a duty to inform the patient of the material risks inherent in the treatment. A risk was material if a reasonably prudent patient in the situation of the patient would think it significant.
Lord Bridge of Harwich whilst accepting that the “Bolam Test” should apply in failure to warn cases added two important qualifications to that test. The first was that even in those circumstances where the defendant was able to rely upon a responsible body of medical opinion who would support his decision not to disclose certain risks the “the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it”, (p900). Lord Bridge’s second qualification, (which was also a qualification acknowledged by Lord Diplock), arose in those cases where a patient has specifically asked a doctor as to the risks associated with a particular treatment. In those circumstances the doctor had a duty to answer truthfully and as fully as the questioner required.
Pearce v United Bristol Healthcare NHS Trust  PIQR P53
In Montgomery the Supreme Court observed that although Sidaway remained binding, “lower courts have tacitly ceased to apply the Bolam test in relation to the advice given by doctors to their patients, and have effectively adopted the approach of Lord Scarman”, (para 64). The case of Pearce observed the court was of particular significance. In Pearce Lord Woolf in a judgment with which Roch and Mummery LJJ agreed said this: “if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt”. The Supreme Court in Montgomery noted that English and Welsh courts had generally treated Woolf MR’s statement in Pearce as the standard formulation of the duty to disclose information to patients.
The Decision In Montgomery
The Supreme Court held that in cases involving a doctor’s duty to advise a patient as to the risks inherent in proposed treatment there was “no reason to perpetuate the application of the Bolam test”, (para 28). The court went on to state that the correct position was that adopted by Lord Scarman in Sidaway and Lord Woolf in Pearce, (subject to a refinement made by the High Court in Australia in Rogers v Whitaker (1992) 175 CLR 479).
The Supreme Court went on to describe the duty of care required of a doctor when advising a patient as to the risks of treatment in these terms:
Having applied the above the Supreme Court in Montgomery held that the withholding of the information as to the risks of shoulder dystocia constituted substandard care. The court also came to the view that if Mrs Montgomery had been provided with this information she would have elected to have her child delivered by caesarean section and as a consequence her baby would have been born unharmed.
Montgomery v Lanarkshire Health Board
 UKSC 15 Supreme Court
(Lord Neuberger PSC, Lady Hale DPSC, Lord Kerr JSC, Lord Clarke JSC, Lord Wilson JSC, Lord Reed JSC, Lord Hodge JSC)
Significance: The majority had unsatisfactorily expressed the scope of a doctor’s duty to inform a patient of the risks of treatment in Sidaway v Board of Governors of the Bethlem Royal Hospital  A.C. 871. A doctor was under a duty to take reasonable care to ensure that a patient knew of any material risks involved in a treatment, and of any reasonable alternative treatments.
Facts: Shoulder dystocia, a form of obstructed labour, occurred during the claimant’s birth. As a result he was born with severe disabilities. His mother (M), who suffered from diabetes, brought a claim for damages on his behalf. As is common with diabetics, M’s baby was unusually large, giving rise to a 9-10% risk of shoulder dystocia, although the risk of it resulting in any harm to the baby was much smaller. The defendant’s consultant (C) did not inform M of the risk of shoulder dystocia. M claimed that, if C had disclosed the risk and given her the option of a caesarean birth to avert the risk, she would not have proceeded with a vaginal birth.
Held: (1) The majority of the House of Lords in Sidaway had adopted the Bolam test (Bolam v Friern Hospital Management Committee  1 WLR 582) in relation to a doctor’s duty to disclose the risks of treatment to a patient. It followed that a doctor would not be negligent if he disclosed the amount of information that a responsible body of medical opinion considered to be appropriate. Lord Scarman, in his dissenting judgment, had adopted a different approach, taking as his starting point the patient’s basic human right to make an informed decision. His Lordship had suggested that it would be negligent if (i) a patient suffered harm as a result of an undisclosed risk, which a doctor, exercising reasonable care to respect a patient’s right to make an informed decision, would have disclosed, and (ii) the patient would have avoided injury if the risk had been disclosed. This latter approach, rather than that of the majority, was already tacitly being followed by the lower courts: Pearce v United Bristol Healthcare NHS Trust  E.C.C. 167 considered.
Considerable time had elapsed since the decision in Sidaway. The speeches of the majority no longer reflected the realities and complexities of a doctor-patient relationship, and there was a much greater emphasis on personal autonomy. Further, the Human Rights Act 1998 had given impetus to the courts’ recognition of fundamental values in the common law, including that of self-determination.
The Bolam test was no longer appropriate in the context of a doctor’s duty to disclose the risks of treatment to a patient. An adult of sound mind was entitled to choose which, if any, of the available treatments to undergo; and treatment interfering with a person’s bodily integrity could not be undertaken without first obtaining consent. Prior to seeking consent, a doctor was under a duty to take reasonable care to ensure that the patient knew of any material risks of the proposed treatment, and of the availability of any reasonable alternative treatments. A risk would be material if a reasonable person in the patient’s position would be likely to attach significance to the risk; or if a doctor knew, or should reasonably have known that the particular patient would be likely to attach significance to it.
(2) On the facts of the instant case, it had been incumbent on C to inform M of the risk of shoulder dystocia, and of the option of giving birth by caesarean section.
Jackson v Murray
 S.L.T. 151 Supreme Court
(Lady Hale DPSC, Lord Wilson JSC, Lord Reed JSC, Lord Carnwath JSC, Lord Hodge JSC)
Significance: Apportionment under the Law Reform (Contributory Negligence) Act 1945 was not an exact science. An appellate court would only interfere with a lower court’s finding where it considered it to be outside the range of what was reasonable, and therefore to be wrong.
Facts: The appellant (J), a 13 year-old girl, had stepped out from behind her school minibus into the path of the respondent’s (M’s) car, and been knocked over. At first instance, it was found that M had failed to drive with reasonable care by driving at 50 mph past a school bus, even though the speed limit was 60 mph. Nevertheless, it was also found that the main cause of the accident was J’s recklessness in crossing the road without making proper checks, and her contributory negligence was assessed at 90%. On first appeal it was reduced to 70%. J appealed to the Supreme Court.
Held: Apportionment under the Law Reform (Contributory Negligence) Act 1945 was inevitably a rough and ready exercise, and there would be a range of reasonable conclusions that could be reached. Assuming there had been no error in the approach taken by the court below, an appellate court would only interfere with a finding where it was satisfied that it was outside that range and was therefore wrong. In the instant case, taking into account all of the circumstances, the courts below had been wrong and it was appropriate for the Supreme Court to reconsider apportionment. M had been at least as culpable as J and the proper apportionment of liability was 50:50.
Sean Robert Delaney v Secretary Of State For Transport
 EWCA Civ 172 Court of Appeal (Richards LJ, Kitchin LJ, Sales LJ)
Significance: Clause 6.1(e)(iii) of the Uninsured Drivers’ Agreement (UDA) was a serious breach of the UK’s obligations under EU law. The clause excluded the Motor Insurers’ Bureau’s liability to a claimant injured in a road traffic accident who knew, or ought to have known, that the vehicle was being used in the course of a crime.
Facts: The claimant (D) had been a passenger and was injured as a result of the negligence of his driver, in whose car a substantial quantity of cannabis had been found. D’s claim for personal injury failed as the driver’s insurer successfully invoked cl. 6.1(e)(iii) of the UDA on the basis that D knew, or ought to have known, that the vehicle was being used for the purposes of drug dealing.
D then brought the instant proceedings against the defendant (SofS) and sought damages pursuant to Francovich v Italy (1990) C-6/90 on the basis that cl. 6.1(e)(iii) of the UDA was a serious breach of the UK’s obligations under Directive 72/166, Directive 84/5 and Directive 90/232. D succeeded at first instance and SofS appealed, arguing that (1) art. 1(4) Directive 84/5 allowed certain exclusions in addition to those expressly set out; and (2) that even if the UK was in breach of its obligations it was not sufficiently serious to give rise to liability on Francovich principles.
Held: (1) The natural reading of art. 1(4) Directive 84/5 was that the only exclusions permitted were those that were expressly provided for in the text. The stated aim of the Directives was to protect victims in road traffic accidents and this was reinforced by the case law of the Court of Justice of the European Union. Clause 6.1(e)(iii) of the UDA did therefore breach the UK’s obligations.
(2) The analysis of the court below in respect of the seriousness of the breach had been correct and it was right to hold that the breach was sufficiently grave to give rise to Francovich type liability.
Anthony Daniel Mulholland v Medway NHS Foundation Trust (2015)
 EWHC 268 (QB) (Green J)
Significance: The standard of care for an accident and emergency (A & E) doctor was that which could be reasonably expected of a doctor working in a pressurised environment without time to conduct research and without ready access to expert opinion. A doctor was entitled to rely on the professional opinions of colleagues in the overall process of assessing patients.
Facts: The claimant (M) attended A & E in January 2010 concerned that he was having a stroke. A hospital GP concluded that the symptoms were the result of cannabis use and/or anxiety. The following day, M returned to hospital with similar symptoms and was seen by the stroke team, which concluded that he was not having a stroke. He was then referred to an A & E doctor (D) who also concluded that the symptoms were the result of long term drug use. In August 2010, following worsening symptoms, M was referred for a CT scan and an aggressive brain tumour was discovered. M accepted that D had not been negligent in failing to diagnose the tumour but claimed that D had been negligent in failing to refer him to a specialist stroke unit where he might have had a CT scan.
Held: (1) An A & E doctor was just one part of the chain of the decision making process in an emergency department, and D could not be criticised for relying on the conclusions of the hospital GP and the stroke team. An A & E department could not function without professionals mutually relying on the opinions of colleagues in the overall process of assessing a patient. It would only be negligent to do so if a previous decision had obviously been wrong. Further, the standard of care for an A & E doctor was that which could be reasonably expected of a doctor working in a pressurised environment without time to conduct research and without ready access to expert opinion.
(2) In the instant case, the opinions of the GP and the stroke team had not been obviously wrong and D, as a doctor working in an A & E department, had been entitled not to rule out that drugs were the cause of M’s symptoms.
Selda Dursan v J Sainsbury Plc
 EWHC 233 (QB) (Jeremy Baker J)
Significance: In the absence of authoritative guidance, it was for the driver of a heavy goods vehicle to determine the order in which he checked his mirrors before moving off. Peter Freeman appeared for the successful defendant.
Facts: The claimant (S) crossed a road in stop-start traffic and was knocked over and killed by a heavy goods vehicle driven by the defendant’s driver (D). It was dark and raining, and S was dressed in dark clothing. D’s vehicle was fitted with fully compliant mirrors including a “Class VI” mirror which gave a view of his blind spot on the nearside. D had been stationary. He checked his nearside window, his nearside mirrors and then his offside mirrors before moving forward. It was common ground that once S stepped off the kerb D could only have seen S in his Class VI mirror, and that there was no authoritative guidance on the sequence of visual checks to be made by drivers of heavy goods vehicles. S’s widow brought a claim on S’s behalf, arguing that D should have made a final check in his Class VI mirror before moving off.
Held: There was no authoritative guidance setting out the sequence in which the driver of a heavy goods vehicle should make his visual checks before moving off. It was therefore for the driver to determine what was appropriate in the circumstances, subject to the provisions of the Highway Code and the handbook produced by the Driving Standards Agency. Taking into account all of the circumstances of the instant case, D had been conscientious and careful, and could not be criticised for failing to check his Class VI mirrors for a second time before moving off. By failing to cross at a more appropriate point on the road and by wearing dark clothing, S had caused the accident.
Michelle Jane Hayes v South East Coast Ambulance Service
 EWHC 18 (QB) (Judge Coe QC)
Significance: An ambulance crew had been negligent in failing to recognise that a patient’s (H’s) asthma attack was life-threatening, and should have realised that it was necessary to administer various drugs, in particular adrenaline. Nigel Spencer Ley acted for the successful claimant, H’s widow (W).
Facts: H had a history of severe, rapid onset asthma attacks. H had had three children with W before separating, but they had resumed their relationship prior to H’s death. H suffered an asthma attack at home and was attended by the defendant, by which time he could not speak and was having difficulty breathing. Following initial treatment, H said that he was feeling better and an attempt was made to take him to an ambulance. He subsequently became unresponsive, suffered respiratory and cardiac arrest, and died. The patient report form completed by the ambulance crew recorded only one sequence of observation, and made no mention of the crew monitoring his pulse, blood pressure or oxygen saturation levels. W argued that the defendant had been negligent; that its negligence had prevented H from being administered life saving treatment; and that damages should be assessed on the basis that H and W would have remarried. The defendant disputed each aspect of the claim.
Held: The ambulance crew had been negligent in its treatment of H, having failed to appreciate the severity of his condition on arrival. It did not carry out basic observations and failed to administer appropriate drugs. Had the treatment not been negligent, on the balance of probability, H would have survived. The Judge accepted that there was an 80% chance of a permanent reconciliation between H and W.