Birth injury claims: informed consent and the ‘professional practice test’

March is Cerebral Palsy Awareness Month; an initiative that aims to push for improvements in education, healthcare and the job market to increase opportunities for those living with cerebral palsy.

Our Medical Negligence team works with several clients living with cerebral palsy with the aim of recovering compensation so that, for example, they can more easily access important therapies and care regimes, live in accessible accommodation, and ensure financial security. We support Cerebral Palsy Awareness Month as a drive to create more equality of opportunity for the cerebral palsy community as a whole so that we can continue to see earlier interventions and rehab, more support through the education system, and better employment practices.

In our work, we assist those living with cerebral palsy by representing them in claims for compensation. These will usually arise from an injury at the time of birth or shortly afterwards (known as ‘birth injury’ claims).

Case study | Multi-million-pound settlement for cerebral palsy claim

In this blog, Charlotte Tracy looks at how developments in the law over the past year have shaped how our team has to approach these cases, particularly on the issue of consent and whether a patient would have, if properly consented, chosen an alternative course of treatment. 

Birth injuries and consent

Particularly relevant to birth injury cases can be what mothers/birthing persons (‘patients’) were told about the risks of labour and delivery, and what they were told about their options. Patients who experienced a distressing vaginal delivery might say, for example, that, if all modes of delivery had been discussed with them, and if a Caesarean section (‘C-section’) had been explained to them and if the risks of a vaginal birth in their specific circumstances had been explored, they would have opted for a C-section instead. This is what we refer to as a ‘consent case’.

There can be several allegations in a claim, one of which might focus on consent, or the case can hang entirely on that issue. Consent cases can be difficult to prove because the person is asked to consider what they would have done without the benefit of hindsight, which can be almost impossible if what followed was a traumatic birth. It can be hard, after painful and life-changing circumstances, to be persuasive that you would have chosen another option had you known more at the time.

One of the questions, therefore, is what other information and what other options should the patient have been given at the time? This is the area where we have seen changes in the law in the past year.

The law on consent

First, a whistle-stop tour of the law up to this point:

The Bolam test

Since the late 1950s, the position was (as set out in Bolam v Friern Hospital Management Committee [1957]) that a medical professional would not be negligent if their practice would be supported by a responsible body of professional opinion. This is known as the Bolam test, or the ‘professional practice test’, and represents the legal standard of care for clinicians for all the care they deliver including, up to 2015, the way they approached consent.

The case of Bolitho v City and Hackney Health Authority added a qualification to this, in that the opinion of that body of professionals had to be logical. In practice, it would be quite unusual to find that an opinion held by a responsible body of professionals was illogical. 

Example: A patient on the maternity ward is going into labour. She is small in build, and diabetic, which has resulted in a big baby. She has told her doctor she is anxious about a vaginal delivery. There is around a 9-10% risk that her baby may get stuck in her pelvis during delivery (known as ‘shoulder dystocia’). The obstetric (maternity) doctor considers the risk of serious injury arising from this is low and thinks if she tells the patient about the option of C-section the patient will choose it, which she feels is not in her best interests. She does not tell the patient about the risk of shoulder dystocia or that a C-section is an alternative. If a responsible body of other obstetric doctors agrees with the treating doctor, then it was reasonable not to warn the patient of the risks or the option for a C-section, and that doctor is not negligent. 

Montgomery

The case of Montgomery v Lanarkshire Health Board [2015] was a landmark decision on the law on consent. The standard of care that medical professionals must provide, unique to the issue of consent, was upgraded.

As a result of the decision in Montgomery, medical professionals must provide information about risks that are material to the patient. This creates an objective-subjective test. The medical professional must provide information that any reasonable patient in that position would need to know and, in addition, information on any risks it would be reasonable for the clinician to think this particular patient would attach significance. In the judgment, the court says the patient should also be made aware of any reasonable alternatives.

Example: Now the obstetric doctor must make the patient aware of all material risks. Shoulder dystocia is a major obstetric emergency which may be traumatic for the patient and there are risks, even if low, of significant injury to the baby. This must be compared with the very low risk of injury to the patient arising from elective C-section, and virtually non-existent risk to the baby. It is the doctor’s responsibility to explain the treatment options, including whether the doctor feels one is medically preferable to another. This is even clearer given the patient has expressed concerns about her ability to deliver vaginally.

Recent changes in consent law

This brings us up to date, and to the decisions in Bilal and McCulloch. Montgomery had touched on the concept of a ‘reasonable alternative’ treatment. But who decides what is reasonable?

Bilal v St George’s University Hospital NHS Trust

The judgment in Bilal v St George’s University Hospital NHS Trust was handed down by the Court of Appeal in June 2023. The claim was brought on behalf of the patient, Mr Malik’s, family, as he had sadly died. Mr Malik had undergone spinal surgery to address ongoing leg pain and an apparent new symptom of a nerve-type pain in the chest area. It was disputed on behalf of Mr Malik that he had been suffering from that chest pain. The case was that there had been a rush to surgery and failure to provide Mr Malik with reasonable alternative treatment options and there had therefore not been informed consent to surgery. The Court of Appeal made a factual finding that Mr Malik had been suffering from the chest pain. Experts gave evidence that it was reasonable for the treating neurosurgeon to offer surgery where alternative treatment options had been tried, exhausted, or would not have worked.

The Court of Appeal set out that the test in Montgomery distinguishes between the two responsibilities of a clinician: assessment of reasonable treatment options and assessment of what risks/treatments should be discussed with the patient as they are material. The Court of Appeal confirmed doctors still had a duty to make sure a patient was aware of any material risks. Material risks are to be judged from the patient’s perspective. However, when considering discussing alternative treatments, the term ‘reasonable’ applies Bolam’s ‘professional practice test’. It is for the clinician to assess whether an alternative treatment is reasonable, in line with a responsible body of medical opinion.

McCulloch v Forth Valley Health Board

The Supreme Court handed down the judgment in McCulloch v Forth Valley Health Board in July 2023. The patient in this case, Mr McCulloch, was admitted to hospital with a history of pleuritic chest pain (pain worse on breathing in), nausea and vomiting. Tests suggested a possible diagnosis of pericarditis (inflammation of the lining around the heart, causing chest pain). Mr McCulloch was intubated and ventilated, and improved slightly. A cardiologist reviewed his echocardiogram and felt his current presentation did not fit with a diagnosis of pericarditis. Mr McCulloch improved further and he was discharged home but was admitted again shortly thereafter. He had similar symptoms and another echocardiogram was arranged. The same cardiologist reviewed this and her opinion had not changed. She reviewed Mr McCulloch and he denied having chest pains, palpitations or breathlessness. She did not consider there were ‘convincing features’ of cardiac tamponade (compression of the heart due to the excess fluid surrounding it) and did not prescribe treatment. In particular, she did not discuss NSAIDs (non-steroidal anti-inflammatory drugs) with Mr McCulloch, as she felt they were not necessary or appropriate. Mr McCulloch improved and was discharged.

The next day he suffered a cardiac arrest and died in hospital. Mr McCulloch’s cause of death was recorded as pericarditis and pericardial effusion (too much fluid in the sac around the heart). It was agreed he had died of cardiac tamponade.

At first instance, evidence was heard from experts who agreed that it was standard practice to use NSAIDs to treat pericarditis and this would have reduced the fluid around the heart. However, the diagnosis had been uncertain. Mr McCulloch’s family argued the cardiologist should have discussed this treatment option with him, and the risks and benefits. They said if it had been discussed, he would have taken the NSAIDs and his death would have been avoided. They argued that the cardiologist should have discussed this in line with the law on consent as set out in Montgomery, even though she did not think it was appropriate to advise Mr McCulloch on NSAIDs. The family’s view was that assessment of the reasonableness of an alternative is to be considered with regard to the circumstances and values of the individual patient.

The five judges of the Supreme Court unanimously held that the correct test for what constitutes a reasonable alternative is the Bolam ‘professional practice test’. As the cardiologist did not think NSAIDs were a reasonable alternative (as there was no relevant pain and no clear diagnosis of pericarditis), and as that would have been supported by a responsible body of medical opinion, the cardiologist had not breached her duty of care and was not negligent. The Supreme Court gave multiple reasons, including that this approach was consistent with regulatory guidance for the medical profession, that it removed uncertainty for patients overwhelmed with information, but fundamentally, that deciding on a reasonable alternative was an exercise of professional judgment.

These decisions constitute a considerable climb down from the law on consent in Montgomery which centred more on patient autonomy. Whilst it endorses patient choice and the importance of informing on material risks, that choice may, in reality, be narrowed if it is reasonable not to inform a patient of a number of options.

Reasonable alternatives in birth injury cases

Reasonable alternatives have cropped up as an issue recently in another big court decision, the case of CNZ v Royal Bath Hospitals NHS Foundation Trust, albeit that this was decided in January 2023, before Bilal and McCulloch. CNZ is a case involving cerebral palsy.

The Claimant, C, was the second of twins born in 1996. The older twin had been born but C was not descending the birth canal. A middle-level obstetric doctor offered to break her mother’s waters but her mother refused and asked for a C-section. Around 20 minutes later, the doctors involved had another discussion about the care and a further 11 minutes later C was delivered by C-section. C suffered profound hypoxic ischaemia (not enough blood flow to the brain) and this resulted in a brain injury. She lives with cerebral palsy. C’s case was that her mother had not been offered a C-section during her pregnancy, and when she asked for one during labour the requests were refused or delayed, and ultimately the C-section took place too late. The case was defended, and a key argument was that a C-section would not have been a reasonable alternative treatment option at the time.

The defending hospital’s expert would not have offered a C-section during pregnancy in 1996 and did not think there were sinister signs during labour such that one should have been offered then. However, he and all the Defendant’s witnesses (the treating doctors at the time) would have agreed to the C-section if the mother had pushed for it. The Court ruled that it was illogical to say they would have offered it, if pushed, and simultaneously say it was not reasonable. The Court decided on the facts and in law that a maternal request C-section must have been a reasonable alternative treatment. It was also decided that the Montgomery principles of consent could be applied retrospectively to care in 1996. Therefore, the doctors should have explained and offered a C-section, and advised the mother of all material risks and benefits.

Conclusion

There is some interesting interplay on the issues here now we have the decisions in Bilal and McCulloch. The Claimant’s expert in CNZ said he probably would not have offered C-section as an alternative in 1996 but, if the mother had raised it, he would have had a conversation about the risks and benefits. This troubled him, given the ruling in Montgomery, as it meant a proactive patient would end up knowing more about the risks and options than one who had not asked the question. However, as discussed above, the recent decisions in Bilal and McCulloch could mean that whilst all material risks of reasonable options are discussed, the existence of a treatment option may be left out of the discussion entirely if it is considered unreasonable by a responsible body of medical opinion. This can make for quite circular and confusing arguments in a situation like that in CNZ.

The decision in CNZ and the issues identified by the Claimant’s expert raise concerns about equality in healthcare and whether a patient more willing and able to advocate for themselves might receive more information than someone else. This difference is widened further when inherent ‘barriers’ such as race and ethnic background, language and cultural differences are taken into account. We support any drive for improvements in these areas to ensure there is fair provision of healthcare and that any discussion of reasonable alternatives is not reliant on a patient pressing for information. Although we would hope this burden would not fall on patients, those who feel they might need help with discussing treatment could contact a patient advocacy service or a charity like The Patients Association.

Further information

It is important in birth injury cases to secure an early view from an expert on the reasonableness, on a Bolam basis, of any alternative treatment. If you have concerns about your experience of childbirth and whether you were given all of the appropriate information, our medical negligence lawyers may be able to help.

To get in touch, call us on 0117 325 2929 or fill out our online enquiry form.