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How could the case of 'Montgomery' affect future birth injury claims?

A recent Supreme Court judgment has changed the legal landscape surrounding patients’ consent to treatment. Emmalene Bushnell discusses how this new judgment could affect women with birth injury claims.

Emmalene is a partner in the clinical negligence team with a particular interest in birth injury and pregnancy related injury claims. You can follow Emmalene on twitter on @Emma_Bushnell
In their Judgment, in the case of Montgomery in March 2015, the Supreme Court ruled that the burden is not on the patient to ask about the risks and options associated with any particular procedure, instead it is for the doctor to warn them of the risk, even if the risks are small.

In the case heard in the Supreme Court, Mrs Montgomery’s doctor failed to tell her when pregnant that as a consequence of her medical condition, diabetes her child risked shoulder dystocia during a vaginal delivery.

Patients, particularly pregnant women like Mrs Montgomery, may now expect a greater degree of autonomy over decision making and ‘risk’ analysis.

Pregnancy is fairly unique in that it is a relatively long and evolving ‘condition’ needing constant medical review and attention.

The relationship between doctor and mother will be important, sensitive and personal. There are multiple opportunities for risks to be identified and choices presented to the mother so consent is a very important issue.

Unfortunately in lots of our cases we have seen evidence of a paternalistic attitude to the patient. Where injuries occur in a mismanaged pregnancy or delivery often mothers are not told about risks that could affect them or their baby before the birth.

We have represented mothers who have not been told of an early risk of a genetic syndrome until the results are confirmed later on in the pregnancy.

Even if the mother may have considered an early termination, this lack of disclosure removes the option. Medical professionals justified this on grounds of ‘protecting’ the mother from bad news until the risk is too great to ignore.

Similarly, we are frequently approached by mothers who say they were inadequately advised on the options of a vaginal delivery over a caesarean section delivery (as in the case of Montgomery).

We are often told by the mother that they felt pressured by the doctor or midwife treating them to choose a particular option, irrespective of the particular circumstances of her or her babies’ condition and without the specific benefits and risks of each type of delivery being explained to them.

In the cases we see, this has resulted in severe injuries to the baby and mother, which could have been avoided if the mother had been told of the risks.

Antenatal screening raises issues of consent in relation to the rights of the mother to receive treatment which may not routinely be offered during pregnancy.

Currently screening for Group B Streptococcus (GBS) is not recommended by the National Screening Committee or the Royal College of Obstetricians & Gynaecologists unless specific risk factors are identified.

Routine screening would determine if women are carriers of a bacteria, which if not identified and treated with intravenous antibiotics during labour, could cause GBS septicaemia or GBS meningitis in their unborn child.

The charity Group B Strep Support believe that every mother should be fully informed about GBS and offered the opportunity to have a test to detect GBS carriage late in pregnancy.

The results of these tests can then be used to inform as to what further treatment may be needed, if any, to minimise the risk of GBS infection in the newborn baby.

Frequently (and unsurprisingly) when expectant mothers are told or become aware of the risks of GBS and the availability of testing they opt to pay to be tested privately.

This arguably saves the NHS hundreds of thousands of pounds in subsequent emergency and long-term treatment of a child who has contracted GBS septicaemia or GBS meningitis. More importantly, it saves a child from serious injury and sometimes death.

The option of GBS screening is just one example of where when the risks are presented to pregnant women, the decisions made by the mother are not always the same decisions that would be made by the doctor.

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