Webster v Burton Hospitals NHS Foundation Trust

On behalf of Attwaters Jameson Hill posted on Tuesday, April 25th, 2017

Although this case was first heard before the landmark case, Montgomery v Lanarkshire Health Board, the appeal was heard afterwards.

The Court of Appeal allowed the mother’s appeal on the basis that the judge had followed the Bolam test, when in fact this case should have been decided based on patient consent, following the precepts set out in the Montgomery case.


Bolam and Montgomery

The Bolam test holds that the law imposes a duty of care between a doctor and his patient, but that the standard of that care is a matter of medical judgement. In Montgomery, the issue at stake was informed consent. This case confirmed that there is a legal duty imposed on medical practitioners to take reasonable care to ensure that a patient is fully aware of material risks of injury inherent in any proposed course of treatment, and the availability of any reasonable alternative treatment.

The decision of the Supreme Court in the Montgomery case means that doctors are now legally obliged to follow the approach set out by the General Medical Council which is based on the informed involvement of the patients in their treatment. It is for the patient to weigh up the various risks of alternatives and to decide as to which form of treatment, if any, they choose to accept.


Webster v Burton Hospitals NHS Foundation Trust

This case highlights that following Montgomery, patient choice is paramount and that the patient has the right to choose the form of treatment they wish to undergo. The role of the medical practitioner is an advisory one in providing medical information, whereas the patient’s decision may be based on a range of other factors.


The case explained

This case was brought by Heather Butler after her son Sebastian suffered serious disabilities following his birth at Burton Hospital.

The High Court heard how Sebastian’s mother, Ms Butler, had wanted to have her baby induced, but the Consultant advising Mrs Butler did not wish her to be induced and wanted her labour to proceed to a natural delivery. As a result, Sebastian was left with life-changing disabilities and profound brain damage after his umbilical cord was compressed, meaning that his brain was starved of oxygen in the days prior to his delivery.

Applying the Bolam test, the High Court found that there was a reasonable and responsible body of obstetric opinion that would have acted in the same way as the Consultant had done, and would not have altered the case management plan.

However, in reviewing the case, the Court of Appeal heard that had repeated ultrasound scanning been carried out, the distress that the foetus was showing and the fact that it was small for its gestational age would have been identified. In that instance the mother would have wished to be induced as she wouldn’t have wanted to delay the birth any longer.

Therefore, the Appeal Court re-affirmed the decision in Montgomery, deciding that the mother’s wish to be induced should have been followed. This decision underlines that the role of the doctor is as a medical advisor, and not as the decision maker.

In addition, it is clear that the courts will take a wide range of factors into consideration, and that doctors are now required to have a deeper understanding of a patient’s concerns. This has wide implications for all areas of medicine.

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