In a landmark case the Court of Appeal has ruled on the side of patient choice versus medical paternalism.
Hearing Sebastian Webster v. Burton Hospitals NHS Foundation Trust [2017], a case brought by Heather Butler after her son Sebastian suffered serious disabilities following his birth at Burton Hospital, the Court decided his mother’s wish to be induced should have been followed.
This was in preference to the instruction of the consultant obstetrician and gynaecologist, under whose care she was under, that she should have a normal delivery.
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 appellate decision where the Court of Appeal has emphatically ruled in favour of patient choice.
Speaking about the ruling, Satinder Hunjan QC of Kings Chambers, who represented Ms Butler 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.”
During the case the Court heard how Heather Butler’s child Sebastian 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.
The Court heard that if the wishes of his mother had been followed this would have been avoided and that 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, although the statistical base was extremely small, that there were additional risks in delaying labour.
Mr Hunjan QC argued that Ms Butler would have wished to have been induced if there was any suggestion of increased risks 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 advisor and not the decision maker.
It was not a defence for the doctor to say there were other doctors who would have acted in the same way and that such a defence was not supportable when it comes to the question of the advice and consent of a patient.
Karen Reynolds, partner at Freeths who has been representing Ms Butler for over a decade during the course of the legal action and has more than 20 years’ experience dealing with cerebral palsy claims, 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.”
(Source: Kings Chambers)
