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Informing clients of risk: Immediate implications of a landmark supreme court decision

02 July 2015
12 min read
Volume 23 · Issue 7

Abstract

In March 2015, the Supreme Court published its decision in Montgomery v Lanarkshire Health Board, a case involving the failure to warn a pregnant diabetic woman of the risk of shoulder dystocia and the possibility of having a caesarean section to avoid this risk. The risk materialised and the baby suffered oxygen deprivation. The lower courts had applied the test for the standard of care that had been in place since 1985, which has been criticised for protecting doctors not patients. The Supreme Court has introduced a new, autonomy-based, patient-centred standard. This article examines the case and explains the importance of the change for future midwifery practice. When disclosing risks, midwives must identify what a reasonable person in the woman's position, with this woman's specific characteristics, would consider a significant risk. They could be held liable for non-disclosure even if the woman does not ask about specific risks.

On 11 March 2015, the Supreme Court handed down its decision in Montgomery v Lanarkshire Health Board (2015) UKSC 11, a case involving the failure of an obstetrician to warn a pregnant woman with diabetes of the risk of shoulder dystocia if she gave birth naturally and the possibility of having a caesarean section instead. The risk materialised and delay in delivering the baby led to oxygen deprivation and subsequent injury. The lower courts had applied the Bolam test standard Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) that has been in place since the House of Lords decision in 1985 in the case of Sidaway. This standard asks what a reasonable competent obstetrician would have told the woman. Over the last few years, this standard has been criticised for being doctor-centred not patient-centred and for failing to recognise patients’ rights of autonomy and self-determination (Maclean, 2012). The Supreme Court decision has over-ruled Sidaway and therefore, a new, autonomy-based, patient-centred standard applies with immediate effect. This article provides an overview of the facts of the case itself, the allegation of negligent failure to warn of the risk of shoulder dystocia, and contextualises the risk of shoulder dystocia in light of contemporary research. It explains the importance of the Supreme Court decision for future midwifery practice.

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