“Giving birth in the “natural” and traditional way or giving birth by caesarean section (unless she lacks the legal capacity to decide) ” is the choice of a Pregnant woman !!!
In a Landmark and interesting judgment delivered on 11th March, 2015 in the case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland), the UK Supreme Court allowed the appeal of Mrs. Montgomery. Co-incidentally I found this judgment and thought worth sharing with you all !!
Before we start further discussion, I would like to clear the doubt that this a Judgment of (Apex) Foreign Court and its not directly binding upon Indian Courts , nevertheless the approach of the Court may help the professionals in their practice and its persuasive value cannot be denied.
The Facts in nutshell are as under :
The Appellant Nadine Montgomery, an insulin dependent diabetic lady gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during the delivery, the baby was born with cerebral palsy of a dyskinetic type & Erb’s palsy (i.e. paralysis of the arm) & hence she claimed the damages on behalf of her Son. It was contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the mother’s pelvis) which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section. Mrs Montgomery was told that she was having a larger than usual baby. But she was not told about the risks of her experiencing mechanical problems during labour.Women with diabetes are more likely to have large babies and there is a 9- 10% risk of shoulder dystocia during vaginal delivery Though this may be resolved by emergency procedures during labour, shoulder dystocia poses various health risks to the woman and baby. Mrs Montgomery had raised concerns about vaginal delivery to her Doctor Mrs. Mclellan, but Dr McLellan’s policy was not routinely to advise diabetic women about shoulder dystocia as, in her view, the risk of a grave problem for the baby was very small, but if advised of the risks of shoulder dystocia women would opt for a caesarean section, which was not in the maternal interest.
The Appellant lost in lower Courts.Lord Ordinary in lower Court rejected the contention of the Appellant that she should have been informed of the risk of shoulder dystocia if vaginal delivery was proposed and that she should have been advised about the alternative of delivery by caesarean section.Lord Ordinary held that whether a doctor’s omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the “Bolam test” (Bolam v Frierm Hospital Management Committee  i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational and Given the expert medical evidence for the Board, the Bolam test was not met. Lord Ordinary further observed that the risk of shoulder dystocia, though significant, did not in itself require a warning since in most cases shoulder dystocia was dealt with by “simple procedures” and the chance of a severe injury to the baby was “tiny”.
The Inner House of Session refused Mrs Montgomery’s reclaiming motion and upheld the Lord Ordinary’s conclusion. However, their Lordships of the Supreme Court turned down the observations of both the lower Courts and allowed the Appeal.
LADY HALE in her concurrent judgment discussed more about the right of women in selecting mode of delivery and her Ladyship observed “the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient’s right of autonomy”. She further observed, Pregnancy is a particularly powerful illustration.
The principal choice is between vaginal delivery and caesarean section. In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after-effects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth. Her Ladyship criticized the decision of Dr. Mclellan and observed that ” Dr. Mclellan’s judgment is not a medical judgment but It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter. Giving birth vaginally is indeed a unique and wonderful experience, but it has not been suggested that it inevitably leads to a closer and better relationship between mother and child than does a caesarean section.”
“Pregnant women should be offered evidence-based information and support to enable them to make informed decisions about their care and treatment. Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being” Her Ladyship observed while concluding her judgment !!!!
As I have mentioned earlier, this judgment may not be directly binding on us, but this will certainly from academic as well as from practical purposes, should be kept in mind…. Its worth reading this judgment.
Thanks and Regards
Adv. Rohit Erande