Court of Appeal victory for patient choice over medical paternalism

A Court of Appeal ruling that held the role of a doctor is that of a medical adviser and not of a decision maker has been hailed as a victory for patient choice over medical paternalism.

In Sebastian Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62, a case brought by Heather Butler, whose son Sebastian suffered serious disabilities following his birth at Burton Hospital, the court decided that a mother's wish to have her labour induced should have been followed.

This was in preference to the instruction of the consultant obstetrician and gynaecologist whose care Ms Butler was under that she should have a normal delivery.

Ms Butler's child Sebastian, now 14, was left with disabilities and profound damage to his brain after his umbilical cord was compressed, starving him of oxygen in the days prior to his delivery at Queen's Hospital in Belvedere Road on 7 January 2003.

The court heard that if the wishes of his mother, who had a degree in nursing, had been followed this would have been avoided, and that the consultant, Mr Hollingworth, had been negligent in failing to monitor the pregnancy with repeat ultrasound scanning.

An ultrasound scan had shown that the foetus was small and that there was disproportion between the head and abdominal circumferences.

Mr Hollingworth contended that even if these features had been identified with further examinations, he would have been reassured about the health of the foetus and would not have carried out an induction.

However, the court heard there was some emerging evidence that there were additional risks in delaying labour, although the statistical base was extremely small.

Satinder Hunjan QC of Kings Chambers, who represented Ms Butler, argued that the patient would have wished to have been induced if there was any suggestion of increased risk in delaying labour as it was her estimated delivery date.

The Court of Appeal found that the decision of the patient may be based upon many factors, which included the patient herself, and that it was for the patient to decide the risks they wished to take concerning their body '“ including the risks posed to a foetus.

The role of the doctor, it ruled, was as a medical adviser and not the decision maker.

Moreover, it was not a defence for Mr Hollingworth to say there were other doctors who would have acted in the same way, and such a defence was not supportable when it came to the question of the advice and consent of a patient.

Lords Justice Simon, Jackson, and Flaux reversed the lower court's decision on liability with damages to be assessed.

Following the precedent set by the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UK SC 11, the case constitutes the first decision where the Court of Appeal has emphatically ruled in favour of patient choice.

Speaking about the ruling, Hunjan QC said: 'The court has established that we are in a modern era of age and consent '“ these cases have application in all areas of medical and related advice and consent.

'They set out the standards of advice which medical practitioners must give to patients to enable them to make appropriate choices.

'The advice which is given must be clear, comprehensible, it must deal with the alternatives which are available to the patient and, importantly, the advice must be given dispassionately and without seeking to pressurise the patient to a particular course of medical treatment.'

Karen Reynolds, a partner at Freeths who represented Ms Butler for over a decade, said: 'The claimant's mother has fought a long and difficult battle to show that patients have a right to be informed about the risks involved in their treatment and make decisions accordingly.'

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD