Webster (a child by his litigation friend, Heather Butler) v Burton Hospitals NHS Foundation Trust  EWCA Civ 62
The Court of Appeal (Jackson, Simon, Flaux LLJ) determined an appeal brought by a child (W) who suffered from cerebral palsy caused by a prenatal injury to his brain. It was not disputed that if W had been delivered 3 days earlier, he would have avoided the injury. An ultrasound scan carried out 2 months before delivery revealed anomalies with the foetus, but a consultant obstretrician (H) had admittedly acted negligently in failing to arrange further scans. A month later, and a day before the scheduled due date, the mother was admitted to hospital feeling unwell. It was W’s case that H should have offered the possibility of induction of labour which, if accepted, would have avoided the injury. The judge at first instance found that H was not justified in categorising the scan as normal. However, adopting the Bolam test, he concluded that a body of consultant obstretricians would not have been deflected from their usual conservative course and could not be said to have acted irrationally or illogically. Further discussion with the mother would not have changed the outcome.
(1) Following the decision in Montgomery v Lanarkshire Health Board  UKSC 11, the Bolum approach was no longer correct. The doctor’s obligation, other than in cases where it would damage the claimant’s welfare, was to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that would affect their health and well-being on proper information;
(2) The question was whether the instant court could assess the conclusion the judge would, or should, have reached on the issue of liability if he had adopted that approach. That involved identifying what information H should have presented to the mother on 27 December, and what her response would have been. H should have told the mother that there was “an emerging but recent and incomplete material showing increased risks of delaying labour in cases with [that] combination of features”. If the mother had been given that information, she would have wanted to be delivered on 27 December, even if the information had been couched in terms of contrary arguments in favour of non-intervention. In those circumstances, the hospital’s submission that, rather than agreeing to induce his patient, H would have sought a second opinion, was rejected. The judge’s decision on liability was reversed.