Landmark case on negligence and consent

Is it negligent not to warn pregnant women of possible clinical risks? This question is at the heart of a recent court case, which has significant implications for practitioners, as it lends legal weight to advice from national guidelines. Consent must be given voluntarily; the person must have capacity; and crucially, must be informed.

The Supreme Court—the highest UK court—has ruled that an obstetrician who failed to give information to a mother of the potential risks of shoulder dystocia was negligent (Montgomery v Lanarkshire HB, 2015). A shoulder dystocia did occur, and the baby, who was born in 1999, suffered significant disabilities. This case will have far-reaching consequences because of the now recognised legal duty to warn of risks. Previous advice about informed consent (e.g. NHS Choices, 2014) now has backing from the highest court in the UK.

The woman in this case is an insulin-dependent diabetic of short stature. The increased risk of fetal macrosomia is recognised in such cases and she ‘was told that she was having a larger than usual baby’ (para 13), but was apparently not informed that mechanical problems might result during the labour because of this. The obstetrician believed that the risk of shoulder dystocia causing serious problems was very small. Her line of reasoning was that if women are told of such a risk,