Beyond Bolam: Supreme Court unanimously allows appeal

The Supreme Court judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 (on appeal from the Inner House of the Court of Session in Scotland) suggests that the current test in Bolam is no longer to be used in relation to patient consent.

The test in Bolam v Friern Hospital Management Committee provides that a doctor is not negligent if 'he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art'.

In Montgomery, the diabetic mother was not satisfactorily informed of the risks involved in giving birth vaginally, specifically in relation to possible shoulder dystocia which presents risk to both mother and baby. Delivery by caesarean section would have meant that the baby would not have been born with cerebral palsy of a dyskinetic type, caused by the deprivation of oxygen.

The mother did not enquire about the risks associated with shoulder dystocia and the doctor did not inform the mother of the risks. In evidence the doctor stated that “if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections”.

The Supreme Court was invited to re-consider the duty of a doctor towards a patient in relation to advice about treatment.

The Supreme Court said:

"because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients."

"There is no reason to perpetuate the application of the Bolam test in this context any longer."

The judgment went on

"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under 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. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."

The judgment went on to say:

"therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests."