The New Age of Consent, Disclosure and Risk – the impact of Montgomery, Wright and Loughlin Cambridge Medico-Legal Forum Satinder Hunjan QC Call: 1984 Silk: 2002 Recorder: 2003 Deputy High Court Judge: 2008

Introduction  “New ways” and “old problems”  Litigation economics  Development of the law 1

Legal Professional Privilege 2

Advice and consent: Montgomery v. Lancashire Health Board [2015] UKSC 11. 3

Brief Facts  1999 case  Mother carrying twins not given advice as to the benefits and risks of a Caesarean section v. a normal vaginal delivery as the treating obstetrician favoured a vaginal delivery and considered that if she advised the mother of the benefits and risks the mother would inevitably choose a Caesarean section.  Regrettably, baby born in a damaged condition – no mismanagement of labour or delivery but earlier delivery if there had been a Caesarean section would have avoided the damage.  Decision: mother should have been advised and if she had been advised in accordance with the treating obstetrician’s evidence, she would have chosen delivery by Caesarean section. 4

Per Lord Kerr and Lord Reid, paragraph 89: “… the assessment of whether a risk is material cannot be reduced to percentages. 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 ought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment therefore is fact sensitive, and sensitive also to the characteristics of the patient” 5

Per Lord Kerr and Lord Reid, paragraph 90: “… a doctor’s advisory role involves dialogue, 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” 6

Per Lord Kerr and Lord Reid, paragraph 93: “It appears to us however, the degree of unpredictability can be tolerated as a consequence of protecting patients from exposure to risks of injury which they would otherwise have chosen to avoid. The fundamental response to such points, however, is that respect for the dignity of patients requires no less” 7

Per Lord Kerr and Lord Reid, paragraph 103: “The question of causation must also be considered on the hypothesis of a discussion which is conducted without the patient being pressurised to accept her doctor’s recommendation” 8

Per Lord Kerr and Lord Reid, paragraph 104: “… had she advised Mrs Montgomery of the risks of shoulder dystocia and discussed with her dispassionately the potential consequences and alternatively an elective Caesarean section, Miss Montgomery would probably have elected to be delivered of a baby by Caesarean section…” 9

Per Lady Hale, paragraph 109: “… it is not possible to consider a particular medical procedure in isolation from its alternatives. Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done…” 10

Per Lady Hale, paragraph 111:  “In this day and age, we are not only concerned about the 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 aftereffects. One of the problems in this case was that for too long the focus was on the risks of the baby, without also taking into account what the mother might face in the process of giving birth” 11

Legal Professional Privilege and Disclosure 12

Case Managers: Wright v. Sullivan [2005] EWCA Civ

Brief Facts  Appeal to the Court of Appeal  Defendant contending that there should be the joint instruction of a case manager and also attaching various conditions to an interim payment in respect of disclosure by the case manager of case management materials and records. 14

Per Lord Brooke LJ, paragraphs 26 and 27: “It seems to me inevitable that the clinical case manager should owe her duties to a patient alone. She must win the patient’s trust and if possible her cooperation in what is being proposed, while it will be in her patient’s interest that she should receive a flow of suggestions from any other experts who have been instructed in the case, she must ultimately make decisions in the best interests of the patient and not be beholden to two different masters.” 15

“Needless to say, any communications the clinical case manager may have with the claimant’s expert witnesses, whose dominant purpose is not one which attracts litigation privilege (for which see Waugh v. British Railways Board [1980] AC 521) will be disclosed as a matter of course.” 16

Christopher Laughlin (by his Mother and Litigation Friend, Barbara Anne Kennedy) v. Kenneth Dal Singh and Others [2013] EWHC 1641 (QB) 17

 First instance High Court decision of Mr Justice Kenneth Parker  Brief facts (pertinent to present issue):  Criticism of case manager in providing goal setting for the purposes of rehabilitation and delivery of the same  Case manager criticised by neuropsychologists of both parties, in particular, in their joint report. 18

Per Kenneth Parker J, paragraph 62: “… I have found that the standard of care and case management services did, in an important respect, fall significantly below the standard that could reasonably have been expected. In other words, the objective value of what the Claimant received was less than the amount of the charges made for the relevant services. There is no precise means of quantifying the appropriate reduction: the exercise requires a court to take a broad view of what the Claimant did receive, and the nature and extent of the putative shortcoming, bearing in mind the particular difficulties in the case, to which I have already referred. It appears to me, balancing these factors that a reduction of 20% in the charges actually claimed would be fair and proportionate.” 19

The Future  Legal aid  One way costs shifting  Litigation outside the Court  Increased Court fees  Costs budgeting 20

The New Age of Consent, Disclosure and Risk – the impact of Montgomery, Wright and Loughlin Presented By Satinder Hunjan QC Call: 1984 Silk: 2002 Recorder: 2003 Deputy High Court Judge: 2008