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Published 21 March 2017
Following a ground-breaking decision by the Supreme Court in 2015, the Court of Appeal have recently re-affirmed that the well-known Bolam test in clinical negligence claims has no place when determining whether there has been a breach of duty in the consenting process. The Court of Appeal has also given some indication of how the new test will be applied going forward.
The case of Webster v. Burton Hospitals NHS Foundation Trust  EWCA Civ 62 concerned the events leading up to Sebastian Webster's birth on 7 January 2003 at the Queen's Hospital, Burton. During the course of his birth Sebastian sustained a hypoxic ischaemic brain injury as a result of a relatively short period of umbilical cord compression. He was left with cerebral palsy, involving profound physical and cognitive impairments. The claim was brought by Sebastian's mother, Ms Butler, on his behalf.
Breach of duty was admitted by the Defendant Trust. Specifically, it was admitted that the Consultant Obstetrician in charge of Ms Butler's pregnancy should have arranged further ultrasound scanning every two weeks in view of the foetus being small for the gestational age. The main issue to be determined, therefore, was causation, i.e. what would have been shown had further ultrasound scanning taken place and what should have happened as a consequence?
Whilst this issue was to be determined to a large extent with reference to the evidence of the Consultant himself, inevitably there was an overlap with breach of duty given the well-established principle that a Defendant cannot rely on a hypothetical treatment plan that itself would be negligent.
The Consultant's evidence was that the results of any further scans would not have altered his management plan, although he accepted that the results would have been discussed with Ms Butler. This was supported by the Defendant's expert Obstetrician. In effect, the Defendant's case was that the course of events that in fact took place would always have taken place and that the unfortunate outcome would always have occurred.
At first instance, and applying the well-known Bolam test for breach of duty, the High Court Judge found that there was a reasonable and responsible body of Obstetric opinion who would have acted in the same way as the Consultant would have done, i.e. they would also not have altered their management plan. The case was therefore dismissed on this basis.
On appeal by Ms Butler, the Court of Appeal re-affirmed the ground-breaking 2015 decision of the Supreme Court in the case of Montgomery v. Lanarkshire Health Board  AC 1430 that the Bolam test no longer applies to issues of consent in clinical negligence claims. The 'new' test for breach of duty in consent claims as per Montgomery – which was brought in to reflect the changing nature of the doctor and patient relationship – is whether the doctor has explained the material risks that:
In applying the Bolam test, the Court of Appeal therefore held that the Judge at first instance had erred. Applying the 'new' (and correct) test from Montgomery above, the Court of Appeal found that the Consultant would or should have informed Ms Butler that the likely combination of features on any further scans was associated with increased risks of delaying the labour. In coming to this conclusion, the Court found that Ms Butler would have attached significant to those risks on the basis that: a) her evidence was clear that if there had been 'any suggestion of risk I would have wanted him to be delivered'; b) she had a university degree in nursing; and c) she was willing to take responsibility for her pregnancy as demonstrated by her decision to leave hospital earlier in the pregnancy against the advice of the doctors.
The Court found that had the material risks been explained to Ms Butler, she would likely have opted for an earlier delivery on 27 December 2002, which would in turn have avoided all Sebastian's injuries (on the basis that it was agreed between the parties that delivery at any point prior to 16.09 hours on 4 January 2003 would have avoided any injury). Ms Butler's appeal was therefore allowed and the decision at first instance was reversed.
The decision and rationale in Webster is complicated by the overlap between breach of duty and causation thrown up by the particular issues in the case. However, what is clear (if it was not clear already) is that the Bolam test now has no place whatsoever in the determination of breach of duty when considering issues of consent in clinical negligence claims. The only test that should now be considered is the one laid out by the Supreme Court in Montgomery.
In applying the Montgomery test, when considering the subjective limb of the test, i.e. whether the Claimant themselves would attach significance to a risk that is considered 'material', the Courts have indicated that they will take a wide range of factors into consideration, including the Claimant's education, conduct throughout the relevant treatment and evidence during the litigation, notwithstanding that the latter will inevitably not be available to a doctor during any conversation when the risks of treatment are discussed and arguably allows for the benefit of hindsight to potentially play a part in the determination of breach of duty. It would appear, therefore, that doctors are now under a duty to understand the particular and personal concerns of their patients. The exact extent of this duty and how far doctors are obliged to delve into a particular patient's idiosyncrasies remains unclear almost two years on from the Montgomery decision in March 2015 and further case law is expected.
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