Montgomery v Lanarkshire Health Board [2015] UKSC 11

1. Case Title & Citation

Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 1 AC 1430

2. Court Name & Bench

• Court: United Kingdom Supreme Court
• Bench: Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed and Lord Hodge
• Bench Type: Full Supreme Court panel (7 judges)

3. Date of Judgment

11 March 2015

Heard on – 22 and 23 July 2014

4. Parties Involved

• Appellant: Nadine Montgomery.
• Respondent: Lanarkshire Health Board.

5. Facts of the Case

Mrs Nadine Montgomery was a highly educated woman, working as a specialist in hospital pharmacy, with full scientific training and an evident ability to comprehend complex medical information. In 1999 she was under the antenatal care of Dr Dina McLellan, a consultant obstetrician and gynaecologist employed by Lanarkshire Health Board. Mrs Montgomery suffered from insulin-dependent diabetes mellitus, a condition well-documented in obstetric practice to increase both maternal and foetal risks. One significant clinical risk associated with diabetic pregnancies is foetal macrosomia (excessive birth weight), which in turn elevates the likelihood of shoulder dystocia during vaginal delivery. Shoulder dystocia refers to an obstetric emergency in which, after delivery of the foetal head, the anterior shoulder becomes impacted against the maternal symphysis pubis, obstructing delivery of the body. It is a complication that may result in hypoxia, brachial plexus injury, or even perinatal death if not managed promptly and effectively.

During antenatal consultations, Dr McLellan was aware of Mrs Montgomery’s diabetic status and her relatively small pelvic frame. She accepted that shoulder dystocia was a recognised risk in such circumstances, estimating it at approximately 9–10%. However, she chose not to disclose this risk in any detail to her patient. Her reasoning, later given in evidence, was that the risk was not, in her professional view, sufficiently serious to warrant routine disclosure, and that discussing it might cause unnecessary anxiety, potentially leading to Mrs Montgomery requesting an elective caesarean section. Dr McLellan stated that it was her practice not to warn diabetic mothers of shoulder dystocia because the overwhelming majority of such births were ultimately safe.

In March 1999, Mrs Montgomery went into spontaneous labour. During delivery, shoulder dystocia did in fact occur. A series of obstetric manoeuvres were attempted in an effort to release the impacted shoulder, but these proved unsuccessful in preventing prolonged obstruction. As a result, the baby was deprived of oxygen and sustained severe hypoxic brain injury, leading to cerebral palsy, as well as a permanent brachial plexus injury (Erb’s palsy). The child now requires lifelong care.

Following the birth, Mrs Montgomery brought a claim in negligence against Lanarkshire Health Board. Her case was twofold: first, that the failure to disclose the risk of shoulder dystocia constituted a breach of the duty of care owed to her; and second, that had she been properly informed of this risk, she would have elected for a caesarean section, thereby avoiding the tragic outcome.

The claim was initially heard in the Outer House of the Court of Session in Scotland. The trial judge found in favour of the Health Board, holding that Dr McLellan’s non-disclosure was consistent with a responsible body of medical opinion, thus falling within the protective scope of the Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 test. That decision was upheld by the Inner House of the Court of Session on appeal, the court noting that it was “a matter of clinical judgment” as to whether risks were to be communicated.
Mrs Montgomery appealed to the Supreme Court of the United Kingdom, raising the fundamental question of whether the disclosure of medical risks should remain governed by the Bolam standard, effectively deferring to professional judgment, or whether the law should instead recognise a patient-centred duty, requiring doctors to disclose material risks that a reasonable person in the patient’s position would likely consider significant.

6. Issues Raised

The appeal before the Supreme Court crystallised into a set of interrelated legal issues that went to the heart of medical negligence jurisprudence and the evolution of patient rights in the United Kingdom. The core questions were:

1. Scope of the Doctor’s Duty of Disclosure
   
   

Does a doctor’s duty of care extend beyond diagnosis and treatment to encompass a proactive obligation to inform the patient of material risks inherent in a proposed treatment or procedure?

If so, what constitutes a “material risk,” and by what standard is materiality to be assessed, the professional judgment of the medical practitioner (doctor-centred standard), or the informational needs of the patient (patient-centred standard)?

1. Applicability of the Bolam Test
   
   

Should the traditional Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 standard, under which a doctor is not negligent if their conduct is supported by a responsible body of medical opinion, govern the disclosure of risks?

Or should disclosure of risks be treated as legally distinct from clinical skill and professional technique, such that Bolam is inapplicable?

Patient Autonomy versus Medical Paternalism

To what extent does the law recognise a patient’s autonomy in decision-making about medical treatment?

Is it permissible for a doctor to withhold information about risks on the basis that disclosure may cause anxiety or lead to choices (such as elective caesarean section) that the doctor considers contrary to the patient’s best interests?

Negligence in the Present Case

On the specific facts, was Dr McLellan negligent in failing to warn Mrs Montgomery of the 9–10% risk of shoulder dystocia and the availability of caesarean section as an alternative method of delivery?

Broader Legal and Human Rights Dimensions

Does the failure to disclose material risks engage wider legal principles, particularly the right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR), which underpins informed consent and self-determination?

Arguments of the Parties

Appellant: Mrs Nadine Montgomery

Counsel argued that the failure to disclose the 9–10% risk of shoulder dystocia and the alternative of caesarean section breached the duty of care:

1. Right to Informed Decision-Making
   

Patients are entitled to make their own choices about treatment. Mrs Montgomery, given her education and circumstances, would reasonably have wished to know of the risk and alternatives.

1. Limits of the Bolam Test
   
   
   • Bolam v Friern Hospital Management Committee [1957] was appropriate for technical medical judgment, but not for disclosure, which concerns communication and patient autonomy.
     
     
2. Materiality of Risk
   
   
   • A 9–10% likelihood of shoulder dystocia, with grave potential consequences, was plainly material. Mrs Montgomery testified she would have opted for caesarean had she been informed.
     
     
3. Human Rights and Comparative Law
   
   
   • Article 8 ECHR, protecting bodily integrity and private life, reinforced the right to be informed. Counsel also drew on Rogers v Whitaker (1992) (Australia), which adopted a patient-centred test.

         7.Respondent: Lanarkshire Health Board

The Health Board defended Dr McLellan’s conduct as consistent with professional practice:

1. Compliance with Bolam
   
   
   • The doctor acted in accordance with a responsible body of medical opinion, which should suffice under Bolam and Sidaway v Bethlem Royal Hospital [1985] AC 871.
     
     
2. Risk–Benefit Assessment
   
   
   • The risk of shoulder dystocia, though measurable, was not high enough to require disclosure, particularly as caesarean section involved its own risks.
     
     
3. Avoidance of Anxiety
   
   
   • Full disclosure might cause unnecessary distress, undermine trust, or promote defensive medicine. Doctors required discretion in deciding what risks to communicate.

8. Judgment

The Supreme Court, in a unanimous judgment delivered by Lords Kerr and Reed, departed from the traditional Bolam standard in relation to risk disclosure and established a new test grounded in patient autonomy.

The Court held that a doctor is under a duty to take reasonable care to ensure that a patient is aware of material risks inherent in a proposed treatment, and of any reasonable alternatives. A risk is deemed “material” if a reasonable person in the patient’s position would likely attach significance to it, or if the doctor should reasonably be aware that the particular patient would attach significance to it.

Applying this test, the Court found that Dr McLellan should have disclosed the 9–10% risk of shoulder dystocia and discussed caesarean section as a reasonable alternative. The risk, though statistically small in terms of grave outcome, was not negligible and was particularly relevant given Mrs Montgomery’s expressed anxieties, her diabetic condition, and her small stature.

The Court expressly overruled aspects of Sidaway v Bethlem Royal Hospital [1985], which had permitted a more paternalistic approach to disclosure, affirming instead that the patient, not the doctor, is the arbiter of what risks are significant. While doctors retain discretion in emergencies and cases where disclosure would cause serious harm (the “therapeutic exception”), this was not such a case.

Accordingly, the Supreme Court held that Mrs Montgomery’s autonomy had been undermined by the failure to disclose material risks. The Health Board was therefore found liable, and the appeal was allowed.

9. Legal Reasoning / Ratio Decidendi

The Supreme Court in Montgomery departed from the Bolam test for disclosure, holding that questions of consent concern patient autonomy, not professional judgment. While Bolam remains relevant to clinical skill, it was no longer apt for deciding what risks must be shared. Patients, the Court stressed, are entitled to shape their own treatment decisions rather than accept a paternalistic allocation of information.

The Court defined a “material risk” as one to which a reasonable patient would likely attach significance, or one the doctor should know would matter to the individual patient. This dual test combines an objective baseline with regard for personal circumstances. In Mrs Montgomery’s case, a 9–10% risk of shoulder dystocia, carrying serious consequences for mother and child, was plainly material. Her expressed anxieties about natural birth only reinforced the duty to discuss alternatives such as caesarean section.

The reasoning of Dr McLellan, who withheld information fearing most diabetic mothers would opt for caesarean sections, was firmly rejected. The Court declared that the doctor’s task is to inform, not to decide. Consent is valid only when grounded in dialogue and respect for the patient’s autonomy, not filtered through medical preference.

A limited “therapeutic exception” was preserved, permitting non-disclosure where information would cause serious harm. But the Court made clear that the exception does not apply where disclosure might simply lead a patient to refuse treatment. In practice, this sharply curtails paternalism.

The judgment aligned English law with comparative authorities such as Rogers v Whitaker (1992) in Australia and resonated with Article 8 ECHR, which protects bodily integrity and self-determination. By rooting informed consent in broader principles of autonomy, the Court harmonised medical negligence with constitutional values.

Its implications are significant: doctors must now present material risks and alternatives in comprehensible terms, tailored to individual patients. Though critics warn of information overload or defensive medicine, the Court prioritised autonomy as a core legal principle. Despite lingering uncertainties about materiality and the scope of the therapeutic exception, Montgomery stands as a decisive rejection of paternalism and a recalibration of the doctor–patient relationship into one of partnership.