Neutral Citation Number: [2017] EWCA Civ 62
Case No: B3/2015/0327
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTIC
QUEEN’S BENCH DIVISION (NOTTINGHAM DISTRICT REGISTRY)
HH Judge Inglis 
Claim No: 03NG90445
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13.2.2017
Before:

LORD JUSTICE JACKSON
LORD JUSTICE SIMON 
and
LORD JUSTICE FLAUX 
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Between:

	Sebastian Webster (a child and protected party, by his mother and Litigation Friend, Heather Butler)
	Appellant	
	and		
	
Burton Hospitals NHS Foundation Trust	
Respondent	

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Satinder Hunjan QC (instructed by Freeths LLP) for the Appellant
Martin Spencer QC (instructed by Weightmans LLP) for the Respondent

Hearing date: 31 January 2017
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Judgment Approved
Lord Justice Simon: 
Introduction
1.	This appeal is against the judgment of His Honour Judge Inglis dated 28 November 2014 in which he found in favour of the respondent hospital on the issue of liability (causation), breach of duty having been admitted.
2.	The appellant was born at 16.09 on 7 January 2003 at the Queen’s Hospital, Burton on Trent with cerebral palsy. He has profound physical and cognitive impairment. It is common ground that his disabilities were caused by an injury to his brain which occurred in a period of between 72 and 48 hours prior to his delivery, and that if he had been delivered before 16.09 on 4 January 2003 he would have avoided brain injury and his consequent disabilities. The injury was a hypoxic-ischaemic insult to the brain caused by a relatively short period of cord compression. If it had been longer than a relatively short period, he would have died. 
3.	The appellant was Ms Butler’s first child and her early antenatal care had been uncomplicated. A dating ultrasound scan on 20 May 2002 gave an estimated date of delivery of 27 December 2002. On 13 August she underwent a 20-week anomaly ultrasound scan, which showed measurements within normal limits but which also showed a low lying placenta. A note was made ‘needs re-scan about 34/52’. Following this she was transferred to the care of the respondent’s antenatal department.
4.	On 31 October 2002 (at 31 weeks and 6 days) she was admitted to the hospital with vaginal spotting or bleeding and a persistent headache. A doctor wanted to admit her for 24-hour observation and explained the implications of possible placental abruption, but she did not want to stay in hospital and signed a discharge form. She explained in evidence that she suffered from anxiety, had been reassured by the staff and felt that for her own wellbeing she would be better off at home since she lived close to the hospital.  
5.	An ultrasound scan was carried out on 18 November 2002 (at 34 weeks and 3 days). The scan was arranged because of the previous observation that the placenta was low and therefore in a difficult position. The scan allayed that particular concern but gave rise to different issues.
6.	First, measurements of the head and abdominal circumferences were noted to be 305mm and 272mm respectively. The head circumference was at around the 25th centile and the abdominal circumference at around the 3rd centile. The foetal weight was estimated at 1.9kg from these measurements. Although the sonographer who carried out the ultrasound scan recorded that there was a range of error in the estimate of foetal weight of ‘+/- 15%’, the measurements of the head circumference and the abdominal circumference were the actual measurements. The foetus was therefore small for gestational age (‘SGA’). 
7.	Secondly, there was asymmetry in the sense that the abdominal circumference was significantly less proportionately than the head circumference. 
8.	Thirdly, there was polyhydramnios (excess liquor). The sonographer drew attention to this by recording ‘depth of liquor = 86mm (normal range 20mm-70mm)’. In the light of the polyhydramnios, the sonographer examined the foetal lips and stomach to see whether there were abnormalities which might throw light on the cause of polyhydramnios.  
9.	At this time Ms Butler was under the care of Mr James Hollingworth, the Consultant Obstetrician and Gynaecologist at the respondent hospital. When he saw Ms Butler following the ultrasound scan he recorded ‘Well - scan  no further PV loss see at 41 weeks’. The note indicated a review after 41 weeks with a view to induction. The relevant guidelines indicated that labour should be induced at 41-42 weeks if it has not begun spontaneously.
10.	Neither following the ultrasound scan on 18 November 2002 nor at any time prior to the appellant’s birth did Mr Hollingworth note that the foetus was small for gestational age, nor did he note the recorded asymmetry nor the polyhydramnios. He treated the pregnancy as being without these features. 
11.	It is agreed that he acted negligently in failing to arrange further ultrasound scanning (every two weeks) in view of the foetus being small for gestational age.
12.	The main issues before the Judge were what would have been shown if further ultrasound scanning had taken place and what should have happened as a consequence. Before turning to those questions, it is convenient to continue with the history.
13.	On 4 December, the midwife at the antenatal clinic recorded that the 18 November scan had shown polyhydramnios. 
14.	On 26 December Ms Butler went into hospital because she felt unwell. She was kept in and observed overnight. Friday, 27 December was the expected date of delivery, as established early on in the pregnancy. At about 10.00 that morning she was seen by Mr Hollingworth. His note reads: ‘BP settled, feels well CTG , check urine for protein home antenatal clinic as planned.’
15.	Ms Butler’s evidence was that she felt a bit better on 27 December, but that she did not particularly want to go home and, since it was her due date and she felt so unwell, she had assumed that she would be delivered. She recalled Mr Hollingworth saying that he was on duty over the weekend and expected to see her back then. Perhaps unsurprisingly, Mr Hollingworth did not recall the conversation, but said that, if he had written ‘feels well’, this would have recorded the short conversation he had with her. 
16.	The focus of the claim and the argument on this appeal rested on the decisions made on 27 December.
17.	In summary, the appellant’s case is that Mr Hollingworth should have offered Ms Butler the possibility of induction of labour at term on 27 December; and that if he had done so the appellant’s brain damage would have been avoided. The respondent’s case is that, if the two omitted ultrasound scans had been carried out (as it accepts they should), they would have provided reassurance. The SGA, the polyhydramnios and (to the extent that it still existed) the asymmetry should not have given rise to the need for any heightened vigilance or advice about the dangers which might be avoided by induction. 
18.	As noted above, the appellant was born on 7 January 2003 following induction.
The judgment below
19.	In his very full and careful judgment, Judge Inglis made a number of findings which are material to the present appeal, and it is convenient at this point to identify three passages. 
20.	The first passage (at §26) relates to Ms Butler’s evidence.
Having considered her evidence … I think that had the mother been advised that she should proceed to induction or that there were increased risks in waiting until 6 or 7 January, she would have wanted to be delivered. I think she was fed up with the pregnancy and with the lack of well-being and it was the due date that she had in mind. She would not have wanted it to be put off, since the prospect of induction was looming in any event.
21.	The second passage (at §33) relates to Mr Hollingworth’s understanding.
Mr Hollingworth is an experienced obstetrician and gynaecologist. He was not justified in simply categorising the 18 November scan as normal. That he did so leaves the court in the unattractive position of having to find what further fortnightly scans would have shown when their absence is caused by his negligence. Mr Hollingworth’s principal concern was foetal nutrition for which he relied heavily on the doppler reading [the ultrasound of the foetal bloodflow] and would have continued to do so with subsequent readings. Although he said he understood the issue raised by the combination of polyhydramnios and an SGA foetus I find that he did not think that that combination shown on the 18 November scan was relevant at the time to the management of the pregnancy. Whatever he understood at the time about the combination as an indicator of possible problems that was not an understanding that management should be affected by it. If anything he was encouraged by the polyhydramnios, since the opposite, oligohydramnios, is the more frequently encountered problem, which may be a bad sign in that the foetus may not be growing as expected … Moreover, if he had the combination of factors present on the 18 November 2002 in mind as having significance for management his note would I think have said so and it does not. The main focus of Mr Hollingworth’s attention was on foetal development as evidenced by the normal doppler which demonstrated that there was not a placental problem. There were no other abnormalities in the foetus itself which were apparent, and none in the case to which he attached importance, hence the tick in his note.
22.	The third passage (at §§86-88) consists of the Judge’s views about the expert evidence of Professor Soothill (called by the appellant) and Mr Tuffnell (called by the respondent) and his material conclusions. In setting out §§86 and 88 I have divided them up with capital letters for ease of reference. These do not appear in the original.
86. [A] Since, as I have found in paragraph 33, Mr Hollingworth, though he may have had some understanding that the rare combination of SGA and polyhydramnios had significance as a predictor of problems, did not see the combination as shown by the 18 November scan as relevant to his decision about management, and therefore would not have been led by the further assumed scans to change the delivery date, the question is should he have done so. [B] It may be difficult to identify that a responsible body of clinicians should have been influenced about the date of induction when Mr Tuffnell himself attached no importance to the combination in his original report, even in the light of retrospective knowledge of the outcome. [C] Faced with an unusual combination of features it should be expected that a clinician in Mr Hollingworth’s position would do what he did not do: inform himself about the implications, and take his decision in the light of the information. [D] The information would be likely to include a list of possible anomalies and complications, which would not be avoided by an earlier date of delivery, but also an increased risk of perinatal mortality, including ante partum mortality, but with the statistical base extremely small: the information would not be accompanied by guidance, official or academic, that I have been shown, about management of the timing of delivery. [E] Professor Soothill has forcibly expressed the view that the balance in favour of delivery by 38 weeks in ending antenatal risk as against the reduction in the chances of complications of labour offered by waiting for spontaneous labour was very strong, so much so that he regarded waiting in these circumstances to be an unusual course, and one that was not justified. [F] Mr Tuffnell does not agree: he, like Mr Hollingworth, did not attach importance, from the point of view of management, to the unusual combination of features upon which reliance is now placed. [G] I nonetheless accept that there was a body of consultant obstetricians who would not be deflected from their normal conservative course by the emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features. 
87. In the end, I come to the conclusion that the body of clinicians that would not be deflected from their usual conservative course could not be said to be acting irrationally or illogically. The advantages on their side of the argument of the chances of improved circumstances of labour underpin their approach, and I do not think it possible to categorise their position as in that unusual category of case that Lord Browne-Wilkinson had in mind in Bolitho.
88. [A] In the circumstances I do not think that the late addition to the case, namely the imperative of discussing the proposed course of events with Ms Butler, changes the outcome. [B] Professor Soothill’s proposal that discussion was required was based upon his view that continuing the pregnancy would be an unusual course for a clinician to take. But I do not accept that premise. [C] If a course were to be unusual, or attended by unusual risks, then discussion of the specific risk would be required. [D] I do not accept Mr Tuffnell’s view that the only thing that would call for an explanation would be a change of plan. I don’t think that was Mr Hollingworth’s view, because he accepted that having commissioned further scans he would have had to explain them to Miss Butler. [E] However, once he is not taking an unusual course, I would not expect a detailed discussion, for example of statistical risk, or of the risk of adverse outcomes which the management of labour could not avoid. [F] I do not think that anything would be required to be discussed with Miss Butler that would have led to a decision different from the one that Mr Hollingworth in fact took, namely to continue until the forty second week in order to achieve a more satisfactory labour.
Montgomery v. Lanarkshire 
23.	The decision of the Supreme Court in Montgomery v. Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430, decided in March 2015 (after the judgment in the present case), brought about a change to what had previously been understood to be the nature of a doctor’s duty to advise in respect of treatment. 
24.	The case concerned the duty owed by a doctor to a pregnant patient in relation to the advice of the particular risks of shoulder dystocia if her baby was born by vaginal delivery (due to her small size and medical condition) which could be avoided by a caesarean section. The Lord Ordinary had found for the defender on the basis that, since the patient had not raised the specific risks of shoulder dystocia from a vaginal delivery, the doctor’s omission to warn her of the inherent risks in such a delivery did not constitute a breach of her duty of care because, on the expert evidence, that omission was accepted as proper by a responsible body of medical opinion.
25.	The judgment of Lord Kerr and Lord Reed (with whom 4 other members of the court agreed) set out emphatically why such an approach to the issue of medical treatment was wrong. 
26.	Certain clear themes emerge from the judgment. First, a change of approach as to the nature of the doctor and patient relationship.
81.  The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.
82.   In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient's entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.
27.	Secondly, the extent of the patient’s right to information, which was addressed at [83].
… The doctor's advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions.
28.	The significance of the decision in Montgomery so far as the present case is concerned can be seen from a passage at [87] that set out the underlying basis for the decision.
… An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
29.	Three further points may be noted. First, the assessment of whether a risk is material cannot be reduced to percentages, see [89]:
The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.
30.	Secondly, the judgment also set out the importance of the dialogue between doctor and patient as part of the doctor’s advisory role, see [90].
… the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.
31.	Thirdly, it is clear that the Bolam approach, see Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, which decided that a doctor was not negligent if he or she acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art, is no longer appropriate. This is implicit from [84], [85] and [87], and explicit from Lady Hale’s judgment at [115] in the context of the doctor’s personal belief in the Montgomery case that it was not in the mother’s interest to have a caesarean section.
In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear, as Lord Kerr and Lord Reed conclude at para 85, that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values her own assessment of the comparative merits of giving birth in the ‘natural’ and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide (St George's Healthcare NHS Trust v. S [1999] Fam 26). There is no good reason why the same should not apply in reverse, if she is prepared to forgo the joys of natural childbirth in order to avoid some not insignificant risks to herself or her baby. She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision.
The issues on the appeal
32.	For the appellant, Mr Hunjan QC submitted that, in the light of Montgomery, the Judge had plainly erred in his approach: the issue was not whether a reasonable body of medical opinion would have been deflected from a particular course but what advice should properly have been given to the mother and what would have happened as a consequence. If Mr Hollingworth had arranged the ultrasound scanning after 18 November as he should, he would have been in a position to discuss the identified features of Ms Butler’s pregnancy. He would have been under a duty to inform her that there was reduced foetal growth velocity, asymmetry and polyhydramnios, and that this was a matter of serious concern. So far as foetal growth was concerned, the reduction in foetal growth velocity was a fall between 18 November 2002 to 13 January 2003 of the abdominal circumference centile from the 3rd centile to the 0.4th centile and of the head circumference from 25th centile to the 2nd centile. That change would have been plotted on the graph in Ms Butler’s medical notes. He should also have told her about the asymmetry and polyhydramnios. By the 27 December 2002, she should have been told that her pregnancy was subject to unusual features if not complications; and she would have needed to know the implications for her baby so as to make a decision about the birth. If she had been given the information that she should have been given, it is clear that she would have chosen to proceed to an induction on 27 December, her due date, rather than delay the delivery.  
33.	For the respondent, Mr Spencer QC submitted that it was important to bear in mind that the admitted negligence related to the omission to order further scans. On this basis the issue was: what would it have been about these scans that should have led to a decision for early induction, or even a discussion about early induction?  From Mr Hollingworth’s point of view, the discussion would all have been positive: the Doppler scans would have shown that the placenta was functioning normally, the polyhydramnios was mild, the CTG was normal and the baby was continuing to grow. It followed that there was no reason to change his plan which was to let nature take its course, with an induced delivery on 6/7 January if she had not laboured spontaneously before then. There was no specific risk of cord damage in utero, and nothing in such a discussion would have led to a decision for early induction. It was important not to lose sight of the fact that any pregnancy has risks, and that induction has its own risks. The Judge’s finding (at §26) that Ms Butler would have wanted to be delivered on 27 December was based on advice that there were increased risks in waiting. This was not Mr Hollingworth’s view, and he would never have so advised. He further submitted that Montgomery was not support for the proposition that a woman had a right to be induced if she wanted to.
Conclusion
34.	It is clear from §§86[G], 87, and 88[C] and [E] of the judgment, that the Judge followed the Bolam approach of basing his judgment on whether Mr Hollingworth acted in accordance with a responsible body of expert medical opinion. It is now clear from Montgomery that this is no longer the correct approach. 
35.	Without intending to summarise the effect of Montgomery, in general terms the doctor’s obligation (apart from in cases where this would damage the patient’s welfare) is to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that will affect their health and well-being on proper information. The significance of the risks and uncertainties, including the possibility of alternative treatment, being sensitive to the characteristics of the patient. 
36.	The question then becomes whether this Court can assess what conclusion the Judge would or should have reached on the issue of liability if he had adopted this approach.
37.	This involves identifying what presentation Mr Hollingworth should have made to Ms Butler on 27 December, and what her response would have been.
38.	So far as the presentation of information is concerned, the Judge found at §86[C] that Mr Hollingworth had failed to inform himself about the implications of the rare combination of SGA and polyhydramnios. The information should have included a list of anomalies and complications which could not be avoided by earlier delivery, but also the increased risk of perinatal (the period around birth) mortality, including ante partum (before delivery) mortality, based on a very small statistical base, see §86[D].
39.	During the course of the argument on appeal we were taken to some of the papers which formed the basis of this finding. These included: Sickler et al: Polyhydramnios and fetal intrauterine growth restriction: ominous combination. J Ultrasound Med 16, 1997 609-14, and Furman et al: Hydramnios and small for gestational age: prevalence and clinical significance. Acta Obstet Gynecal Scand 79 (2000). The latter was more directly in point and supported the Judge’s conclusions at §86[D] in two material respects: first, an association of the rare combination of SGA and polyhydramnios with ante partum mortality; and secondly, the small (or extremely small) statistical base for this finding, as might be expected from what is said to be a rare combination. 
40.	What then should Mr Hollingworth have told Ms Butler on 27 December 2002? In my view, the answer is to be found in the last words of the judgment at §86[G]: namely, that there was ‘an emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features.’
41.	So far as Ms Butler’s response is concerned, the answer is clear from §26 of the judgment. If she had been given the information that she should have been given, she would have wanted to be delivered on 27 December; and this would have been so even if the information had been couched in terms of contrary arguments in favour of non-intervention. I would add that this conclusion is supported by her clear evidence (that if there had been ‘any suggestion of risk I would have wanted him to be delivered’), her background (a university degree in nursing) and her willingness to take responsibility for her pregnancy (as demonstrated from her decision to leave hospital on 31 October and the reasons for that decision).
42.	In these circumstances I am unable to accept Mr Spencer’s submission that, rather than agreeing to induce his patient, Mr Hollingworth would have sought a second opinion.
43.	For these reasons, and on the unusual facts of the case, I would allow the appeal and reverse the Judge’s decision on the issue of liability.
Lord Justice Flaux
44.	I agree.
Lord Justice Jackson
45.	I also agree.