In a landmark ruling this month, the UK Supreme Court allowed an appeal from a Scottish court which clarified the test to be applied in medical consent cases and gave a long-awaited affirmation of a woman’s right to personal autonomy in childbirth.
The seven-judge court in Montgomery vs Lanarkshire Health unanimously held that a woman had a right to information about “any material risk” in order to make an autonomous decision about how to give birth.
The claimant in Montgomery was a woman in her first pregnancy who had diabetes. It was agreed that the risk of shoulder dystocia (difficulty delivering the shoulders) occurring during vaginal delivery was 9 - 10 per cent in the case of diabetic mothers. However, obstetricians owe a duty of care to two patients at the same time: the mother and the baby yet to be born.
Shoulder dystocia also poses serious risks to a mother’s health, such as post-partum haemorrhage (11 per cent) and fourth degree perineal tear (3.8 per cent). The woman was not told of the risk of shoulder dystocia. In the opinion of her doctor, the possibility of this complication causing a serious problem for her baby was very small. Although the woman had repeatedly expressed concerns about giving birth vaginally, the doctor said that she routinely chose not to explain the risk of shoulder dystocia to diabetic women because if she did explain it, everyone would ask for a Caesarean section.
During vaginal delivery, the umbilical cord was occluded, depriving the baby boy of oxygen. He was born with severe disabilities. The claimant alleged that she should have been advised of the risk of shoulder dystocia in vaginal delivery and of the alternative option of elective Caesarean section, stating that had she been so informed, she would have elected for a Caesarean section.
The court reiterated that there was a duty on doctors to discuss with patients the material risks involved in the medically preferred treatment and any alternative treatment options. The test for materiality is whether a reasonable person in the position of a patient would think the risk significant.
It was found that the risk of shoulder dystocia was substantial and it should have been disclosed. It was not disputed that had the baby been delivered by Caesarean section, he would have been unharmed. Had the risks been discussed with the claimant, she would have had a Caesarean section.
A patient-centred approach to the issue of consent has been adopted in virtually every major common law jurisdiction, including Australia, Canada and the United States.
In Ireland, Mr Justice Nicholas Kearns stated in a 2000 case, Geoghegan vs Harris, that the “reasonable patient test”, which requires full disclosure of all material risks, is the preferable test to adopt, so that the patient, thus informed, makes the choice.
The court considered the assessment of the duty of disclosure by way of the reasonable patient test more logical than the “professional standard test”, where the standard of the medical profession is adopted by a court, yet the right to override the views of the medical experts as and when it sees fit is reserved.
Mr Justice Kearns visited the issue again in 2007, in Fitzpatrick vs White, noting that while courts in the UK had retained the professional standard test or what might be called the “doctor-centred” approach, some consideration had been given to the fact that there was a duty to impart certain information regarding risks where those risks were likely to be relevant in the eyes of a reasonable patient.
A pregnant woman must be given sufficient understanding to enable her to make a choice in circumstances where she is free to exercise choice. That is what consent is all about and pregnancy is a particularly powerful demonstration of it.
Once pregnant, there are only two possibilities, vaginal birth or Caesarean section. There is no third alternative. While most doctors are meticulous in obtaining “consent” for operative intervention, they seem to have little appreciation of the need, equally great, for proper consent to the non-surgical alternative.
Such an approach has no place in the 21st century. The question needs to raised: what risks of elective Caesarean section could outweigh the known risk, in any particular case of vaginal delivery?
The doctor in Montgomery had expressed her view that it was not in the maternal interests for women to have Caesarean sections. Whatever she may have had in mind, it did not look like a purely medical judgment.
As Lady Hale noted, it looks like a judgment that vaginal delivery is in some way morally preferable to a Caesarean section, so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter.
A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth vaginally and of giving birth by Caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby.
Montgomery shows that the doctor-centred approach in consent cases does not reflect the modern doctor-patient relationship within medical and, in particular, within maternity services. This move away from the traditional paternalistic “doctor knows best” philosophy should be warmly welcomed.
Doireann O’Mahony is a barrister