 Well, good evening ladies and gentlemen, it gives me a great pleasure to welcome you here for the Baron Delancey Medical Law lecture. My name is Cathy Liddell and I am the director of the Law Faculty's new centre for law, medicine and life sciences. Along with about a dozen colleagues, our centre is involved in teaching and researching quite a handful now of very interesting legal and ethical issues arising out of medicine and medical sciences. We are very pleased to have been asked to organise the Hayden Delancey lectures. They've been a feature of the Law Faculty's calendar for a number of years and they've had actually a number of distinguished speakers, many of whom you can find videos of on the centre's new site. Our centre is particularly interested in interdisciplinary collaborations, so we are very grateful that so many of you could come this evening. We know a little of your backgrounds and I see in fact a number of familiar faces from the Law Faculty, including staff members and students. Also a number of people from the clinical school, also people from other departments in the humanities and social sciences, and I'm also pleased to say from the practicing legal profession. Indeed, we have with us this evening, Lord, right honourable Lord Reid near this evening. As many of you will know, he is a justice of the Supreme Court and was also one of the judges hearing and deciding the Montgomery case that we are discussing this evening. We are also very grateful that the trustees of the Hayden Delancey Trust could be here this evening without the financial support of the trust and also the organisation that one of our centre members, Col McGraw, who I think is still outside still organising this evening, would not nearly have been possible. Turning now to our speaker, we have invited this year Mr James Badenock QC. Mr Badenock is a distinguished QC who has retired recently after more than 25 years at the bar in medical law. Your website wasn't updated then, like so many of us. His colleagues describe him as a barrister who has seen it all, done it all and yet still remain tremendously respected. He told me when we were walking over here that as a younger man it was his father, all of them growing up in Oxford, who began setting up the Cambridge clinical school. So that is quite a neat circularity and a coincidence for this evening. His last case was Montgomery against Lanarkshire Health Board and it will be the topic of this evening's lecture. That, ladies and gentlemen, please join me in welcoming our speaker. Thank you very much Cathy and thank you to Colm and thank you to Professor Spencer and all those responsible for inviting me to give this distinguished as I understand lecture. I'm afraid I'm not very distinguished and when they told me that Lord Reed was going to be here, my reply by email I think began no pressure then. The fact is it's an honour to give this lecture and a particular honour for me to know that here there are members of the clinical faculty at Cambridge Medical School as well as law students and law dons. It's true as Cathy said that my late father who died in 1996 was one of the two creators, begetters, founders of the Cambridge Clinical Medical School. He'd been Dean of the Medical School or Director of Clinical Studies in Oxford and in fact for many years every Saturday he came over to Cambridge, found his way somehow and when he died, the then Dean of the Cambridge Clinical Medical School wrote to my mother with the words we know on whose shoulders we stand. So those of you who are now studying in that clinical school have before you the son of the man, one of two men who created that and from which I hope you derive the benefit now. Bairon D'Heddon de Lanciae looked up his history, a true polymath, a man of very many parts, a qualified doctor, a qualified dentist, a teacher, a philanthropist, a multilingual speaker of I think five languages. I pale into total insignificance in his shadow and I'm sure I shall never have a lecture named after me. It used to be a game in my family, what would you like to have named after you? A disease came high, Parkinson's. A law would perhaps be even better, Boyle's law. We even thought of a country, Rhodesia, but perhaps that's better not talked about in the modern world. But we stopped the game almost, it came to full stop when we learned about the great explorer Humboldt. He didn't just have a lecture named after you or a country or he had a glacier, a current, a mountain range, 300 species of plants and 100 species of animal including some of you will know Humboldt's penguin and above all Humboldt's hog nose skunk. With an eponymous animal like that I'm sure he died happy. Anyway, I must turn to the matter in hand and I hope you'll forgive me if I appear to some of you to talk a bit down to you because I think the case of Montgomery needs to be set in its proper context. I pronounce it by the way Montgomery because that's how the family pronounce it. It's a Scottish family and I believe also the great Field Marshall pronounce it that way so forgive me if you don't like it but that's how Mrs Montgomery pronounced her name. The decision in that case overturned the much discussed and much reviled decision in the case of Sitaway against the Board of Governors of the Bethlehem and Mordsley Hospitals. That case, as I say, had been much reviled written about in textbooks, many chapters. It was a case in which the law lords as they then were with the now vindicated exception really of Lord Scarman but perhaps to a limited extent also Lord Templeman had clungdogedly to the concept that in respect of the disclosure of information to patients for the purpose of their consent to medical treatment what is known as the Bolan principle should apply. A principle which we argued and which I hope to show you belonged to attitudes to the doctor-patient relationship which were of a past era even then and are certainly of a past era now. We argued and the Supreme Court justices agreed with us that the Bolan test for this purpose at least and I'll discuss the Bolan test in a minute should be and needed to be now consigned to the dustbin of history. The principle of Bolan and he gave his name here's another thing an eponymous case he gave his name Mr Bolan to the case and the principle which caused him to lose his claim for damages. He was a man greatly depressed he was subject to ECT treatment and when they applied the paddles and the shocks he was thrown bodily from the couch onto the hard floor and broke both his femours and was crippled for life. He alleged that he should have been strapped on or sedated to prevent the spasm of muscles which threw him off the bed and his expert said of course he should. The defence found experts to say that they didn't dream of sedating or strapping a patient because that in itself could cause injury. It was always difficult to see what on earth that injury might be compared to being thrown bodily from the bed. But the principle which was applied was summed up by the headline in the Times Law Report in 1955 to Bolan's other alter ego the case of Hunter and Hanley in Scotland. The headline was No negligence where doctors disagree. That in layman's terms sums up the Bolan principle. What they decided in Sidaway was that it applied as much to decisions from the doctor about what to disclose to the patient for the purpose of consent as it did to the doctor's expert decisions about diagnosis and treatment. That meant according to Lord Diplock who gave the leading and most robust judgement in Sidaway that if the issue of allegedly inadequate disclosure of information to a patient was raised on which after all the patient was deciding whether or not to consent to treatment the answer to whether it was adequate and therefore negligent or not was answered by a simple question. Was the amount of information whether it was little or a lot or perhaps not any which the doctor gave sufficient to meet the approval or sanction of at least a responsible body of medical opinion however small a minority that might be. And yet even in 1985 when they decided that that was so they had to acknowledge that the decision in question whether to consent is not the doctors it is the patients because it is our inalienable right and was then and always has been. It is our inalienable right provided we are sound mind and conscious and capable of deciding to decide what shall be done or not done to our own bodies. And you'll remember the law students among you and the lawyers that it is long been established that if there is any interference with our bodily integrity or our bodily functions by a doctor or a surgeon that is unlawful if it is not the subject of valid consent. It must by necessary definition to be real consent must by necessary definition to be real and valid be the product of a free choice by the patient as part of our right to personal autonomy and self-determination and what we asked the court in Montgomery was this what does that choice mean? What does the autonomy really amount to if the decision is to be made on however much information, however little information the doctor may choose to give you when he asks you to consent. You will perhaps appreciate at once that under the Borland principle a doctor had only to find a group of doctors who would approve for example that he told you nothing of the risks and if they did approve it he would not be found negligent. In other words by that principle of law the opportunity to exercise your right to self-determination was subject to information that was rationed, limited, confined, unregulated, unpredictable subject to the personal and endlessly variable idiosyncratic whims of the given doctor because as many doctors as there were you can be sure there would be as many notions of what it was right or wrong to tell you in respect of your treatment. And as the High Court of Australia had said in Rogers and Whitaker in 1992 the choice is in reality meaningless unless it's made on the basis of relevant information and advice because the choice to be made calls for a decision by the patient on information which is known to the medical practitioner but not to the patient it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or for that matter of the medical profession. And to cut a very long story short the Boland principle had established the concrete proposition that the autonomy apparently could be limited, rationed and regulated by whatever the doctors at their idiosyncratic whim thought right to tell you. To cut a long story short the Supreme Court presented with the perfect storm of facts that the justice Montgomery's case accepted our argument that the Boland principle should not apply to information disclosure for consent and that said away had been in 1985 wrongly decided although it had prevailed and affected litigation for those 30 years. The true test said the Supreme Court in Montgomery was not one of professional approval because unlike diagnosis and treatment consent is a decision for the patient to make and it requires for its reality and validity that the patient had received enough information on which to enable him to make a real or reason choice. The case began in Scotland and ended its route via the trial judge in Scotland and the appeal court in Scotland in the Supreme Court and there we were confronted with seven Supreme Court justices I have to say I was used to one judge I had not infrequently appeared in front of three judges in the Court of Appeal and once in the Court of Appeal in front of five judges in a case called Highland Ranking but seven was a new experience for me and the reason was that we had indicated in advance that we were hoping and intending to persuade them to overturn a previous decision of their predecessor the Judicial Committee of the House of Lords. I hope you'll forgive me if I briefly spend a little time on the BOLAM test. It had been in fact preceded in Scotland by the case which I mentioned earlier called Hunter and Hanley. I will assume your familiarity with the principle but I think it's quite important just briefly to remind you of one of its main expositions that was Lord Scarman in another case Maynard against the West Midlands Regional Health Authority he said this and I think it is worth just citing to you a case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It's not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision if there also exists a body of professional opinion equally competent which supports the decision as reasonable in the circumstances. Differences of opinion and practice exist and will always exist in the medical as in other professions there is seldom any one answer exclusive of all others to problems of professional judgement. A court may prefer one body of opinion to another that is no basis for a conclusion of negligence. And so you see that in its purest form the Bolan defence will excavate doctors if they can manage to rustle together approval from at least a body of their own profession even in cases where the facts would to a layman appear blatantly negligent and if I may just extremely briefly could I tell you about a case I was in when I was a young barrister Cesarean section the obstetrician was holding the baby by its feet as he lifted the baby out of the abdominal and uterine incision when before the after coming head came out the uterus went into a rare phenomenon a very sharp spasm around the baby's neck. While that was going on the baby was certainly asphyxiating he didn't do anything he simply waited holding the baby's feet while that live normal healthy baby asphyxiated in his hands. Our expert said it was simple to rest to him cut a vertical incision at right angles to the first do it immediately out would come the head the baby is rescued entirely normal and healthy then sew up the mother's uterus. No said professors from guides on the other side that was an unacceptable mutilation and it would threaten the mother's future note the word future fertility and they pointed through a text book an old text book called Walker McGurray said exactly that so the judge said Bolaam, I was well and truly Bolaam. He said the two professors and the text book made it absolutely plain that there were two schools of thought here it was approved by at least a body of the profession and we lost and that's the case is scarred on my soul I should have appealed it and I didn't I was young and naive and Bolaam was in its pomp in those days Had I done so we would have arrived at the decision which eventually came in the case of the life though of which some of you will know which came much later in 1998 what the court would have had to decide it seems to me if I'd appealed that case or had a parent I have to tell you wanted nothing more to do with the law at all if I had appealed that case we'd have got the Bolaam, Bolaitho decision and that you'll remember all of you probably know this temp has Bolaam by saying this that in rare cases there may be an instance in which the opinion of the defending doctor when subjected to logical analysis fails to withstand that test and if but only if that is so then the judge may reject the defendant school of thought that would have happened in relation I'm sure you'll agree with me to the facts of the case I just described about the baby trapped within the uterus but I didn't do it and I regret it and Bolaitho was not of course a eureka moment in reality because wise judges had in fact in my experience for years been tempering Bolaam with some kind of their own logical analysis for otherwise no medical negligence claim would have been one before Bolaitho and yet some were I can assure you and that must by necessary implication involve cases in which there were two opposing expert views and the judge in the end was happy to prefer one to the other to Bolaam in its pure form so Diplodd in Cidaway and to a lesser extent the other law lords apart from Lord Scarman had said the Bolaam test was the way to judge whether information disclosure was adequate and though Diplodd said it in the strongest terms adding this the only mention the only effect that mention of risk can have on the patient's mind if it has any at all can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interests to undergo well I don't need you to you don't need me to tell you that that exemplifies a very condescending and very paternalistic view of the patient but it's one which prevailed for many years and one which was based as I'm sure you'll agree even the younger members of this audience on a bygone concept of the doctor-patient relationship the concept that the doctor exercises some God-given, slightly quesai magical skill which asks mere mortals the patients are not in a position to understand and we should not in any sense challenge or question what the doctor decides doctor knows best the principle that says hello take these pills to a day every night or good morning George I'm going to cut your leg off and to be perfectly frank there were many doctors who thought that that was of course entirely proper and were not happy at being questioned in any sense by their patients the older generation still in this country will I think to some extent suffer from this doctor knows best concept but it was well out of date by the time Belythe came along and certainly by the time Montgomery was decided I should add and I'll take it very briefly that Lord Diplock made a special exception for himself in his judgment he explained and said in terms that although patients generally should not be told and they'd only be frightened off the treatment they would have and therefore doctors can decide how little or how much he said that when it comes to warning about risks the kind of training and experience that a judge will have undergone at the bar makes it natural for him to say brackets correctly it is my right to decide whether any particular thing is done to my body and I Lord Diplock want to be fully informed of any risks there may be involved of which I am not already aware from my general knowledge as a highly educated man of experience said that I may form my own judgment as to whether to refuse the advised treatment or not now we've laughed at that, we can't help it it belongs to another era doesn't it but we asked in Montgomery and the Supreme Court justices clearly took it on board because they cited that passage in their decision Lord Reed and Lord Kerr wrote the principle opinion in that case the Supreme Court justices recognised that there was something entirely unacceptable in the modern world in differentiating between Lord Diplock on the one hand who was entitled to full information and the rest of us, the mere mortals, the great unwashed who should not have access to that information for fear that we might fail to understand it or be frightened by it sufficiently to jump out of bed and run down the street refusing our treatment so let me just move on the fallacy and illogicality of Sydoway is important for us to get a grip on to understand how Montgomery presented the right opportunity at the right time to change the law the opinion of Lord Bridge allowed what we said was an illogical exception to this rule he said that a doctor would have a duty to disclose a risk even in Sydoway's day this is back in 1985 he would have a duty to disclose a risk if the patient actually asked about it or if the risk amounted to what he said would be a significant risk namely a risk of the order of 10% well, as for the as for those exceptions which Lord Bridge allowed I expect you can see through both of them at once firstly, it has to be said about picking a percentage for the risk you must tell your patient about that it may very well be if you were in the patient's shoes and many of you will have been that a very small risk of extremely serious harm might be something of which you wish to take very careful account whereas the 10% or even greater risk of very minor harm would be something which would be immaterial to your considerations when asked to consent or not similarly, in relation to the suggestion that if a patient asks a question directly about risk the doctor must then give a truthful answer we, and I'm sure you will agree with me argued that that too was illogical and unworthy of modern day consideration how is it we ask that when the patient dares to ask a question it amplifies or changes the duty of the doctor to provide information why is it that the information that the patient thus seeks by asking now becomes information which is necessary for the doctor to supply to the patient when up to that point it has not been why is it that it becomes relevant and material and important to disclose simply because the patient has had the curiosity or the temerity to ask the doctor about it if this, I think I call it transubstantiation of information in my submissions if this transubstantiation of information which is previously irrelevant to the patient's decision into material that is now relevant it assumes that contrary to the principle of clinical judgement as the yardstick under Bolan that the yardstick is in fact the patient's own perceptions and that we argued in Montgomery should be the key to the test applied to disclosure the patient's own perceptions Could I just pause a moment at the risk of sounding pious it seemed to us and it may seem to you that the Bolan principle applied to disclosure fails to take account of what a patient really is a patient is a human being a person who is by necessary definition suffering a health problem probably anxious even afraid having personal characteristics timidity, intelligence whatever it might be having responsibilities outside hospital a home life, perhaps a family views and perceptions hopes and wishes of his own a patient is such a creature but the Bolan principle and the doctor's condescending permission simply to choose whether to tell you anything or not about what he proposes to do to you treats you in a way which I hope certainly my late father would strongly have deprugated on what you do too treats that patient as if he is just an interesting broken piece of machinery upon which the doctor has the right to practice his arcane skills and that is at the heart philosophically as well as morally and legally of our objection to the Bolan principle being allowed to govern what nor told but the key phallocene sits it away which we argue then which the Supreme Court agree is in eliding the two types of decision the doctor is making the first is diagnosis differential diagnosis and the second is what is the appropriate form of treatment that of course comes from the doctor's learning and experience in his medical profession but the other decision which by a set of way was lumped in with those two decisions was entirely the patient to make the patient has the right to determine what shall be done or not done with his body and remember this that that patient however stupid he may be has in fact the right to define treatment altogether provided he is of adult years and sound mind even if that is a very foolish decision and to the detriment of his health indeed you will have read about cases and they are not unfortunately uncommon in which people refuse blood transfusions for example on religious grounds people who refuse forced feeding people who insist that they want no more cancer therapy and wish instead to die these are cases in ordinary daily life when my chambers was asked whether we would agree Jehovah's Witnesses came to us we were asked would we agree when they had occasion to contest the giving of a blood transfusion to a child whether we would be willing to act for them we were all brought up as the bar is or ought still to be on the basis that we do not judge the client but we are not allowed to reject anyone's case simply because it is in some sense morally repugnant to us and we listened to the Jehovah's Witnesses who came to see us we believe that if our child is given a blood transfusion he will go straight to hell when he dies we believe that and when we are asked to consign our children to hellfire in damnation for all eternity we don't want the doctors to do it and they said to us you may not agree with us and you may find our beliefs repugnant but we believe it will you be prepared to argue our case and of course we had to say much as it might go against the grain for us yes we would how did I come to be in Montgomery it's a Scottish case and they have barristers in the case barristers of the highest calibre well the answer is simple I had become known I think I have to say notorious for my lectures and articles in which I have long contended that Bolam should be consigned to the dustbin of history in all medical cases in simple terms my contention has been for some time that you should restore to the judge the normal judicial function in medical cases which he enjoys in all other cases involving expert opinion namely to discriminate in his mind having listened carefully between two opposing expert cases and to decide which one he prefers and to decide the case accordingly he does that with the designing of bridges and buildings he does that with the steering and running of tankers in the high seas he does that bring it back to simple terms in relation to the driving of cars the judge's function in those respects is perfectly well established and normal and generally nowadays in the medical sphere is he effectively disqualified from exercising that function because no negligence if doctors disagree as that times headline put it and so there it was I was known for these views and Montgomery's fact presented the perfect storm in which we had an opportunity to attack Bolam at least in that context of medical care briefly I think if you don't mind I'll tell you the rather distressing facts of Montgomery some of you will know them very well please forgive me but I'd like you just to bear them in mind Mrs Montgomery was an intelligent graduate in molecular biology she was very small in stature just over five foot tall and pregnant for the first time there was a feature of her case I'm going to take this quickly which made her pregnancy as was agreed high risk was a long standing incident independent diabetic and the odd thing about such women is this their fetuses often grow excessively large in the womb and one extra feature they have they tend to put a large layer of deposit of fat about the fetal shoulders don't ask me why they do that or what quirk of nature allows it but that is what happens with the consequence especially in a very small woman who's diabetic with a very large child that there is a very particular risk in delivering vaginaly in the normal way that is this the risk is called shoulder dystocia when the baby's head is out sometimes the shoulder may become stuck behind the mother's synthesis putus which is the frontal bone across the front of the female pelvis and if it does so it's a dire obstetric emergency in about 10% of diabetic mothers with macrosonic children who are allowed to labour it will happen when it happens crisis I've seen a film with it as it happens the room fills up suddenly they call the paediatrician the neonatologist, the anesthes the consultant obstetrician they call extra midwives the mother is pulled to the edge of the bed her knees are thrust back over her chest called the macrobots manoeuvre the manoeuvre would be a good one to have named after after me the macrobots manoeuvre and they try sometimes by super pubic pressure the knees back on her chest to push that shoulder down mostly they succeed but it's a horrible experience for everyone if they succeed partial the baby is saved from asphyxiation because the great danger in doing this phenomenon is that the cord is occluded between the baby's shoulder and the mother's bony pelvis even if they succeed in extracting the baby fairly quickly there is another crisis which can occur which is that the brachal plexus is ae valst from the spinal column the nerves which control the function and the sensation of the arm unfortunately in rescuing children from the shoulder of socef it's a phenomenon that happens they're left with a flail arm and I had a client years ago who told me that he'd even started cooking his arm on the stove on the gas stove and only realised he was cooking it when he smelled his own burnt flesh it's a useless sensationless arm a bad thing in itself but worse of all is that delay occurs in rescuing the shoulder dystocia and getting the baby out he will asphyxiate and suffer brain damage or death so that was the risk about 10% of laboring mothers who had that phenomenon of them only a small percentage come to real grief perhaps one or two percent but in advance you have no idea which of the 10% it's going to be that comes to grief and of course it was poor Mrs Montgomery's baby that did what happened she was very anxious because she was anxious and tiny and with a big baby they exceptionally called her a high risk and they exceptionally measured the size of a baby fortnightly by ultrasound any of you have had babies know that fortnightly ultrasound measurements is a very extreme step and they plotted the graph and the baby was getting bigger and bigger and Mrs Montgomery was frightened she asked as the transcript showed more than once would she, this tiny woman be able to push this big baby as she knew it was out safely that you may think was in layman's terms a question specifically directed to the risks that she confronted given her special case so what happened Dr McClellan did not tell her anything about the risk Dr McClellan ordained that she would be induced her labor would be induced Dr McClellan in evidence announced this is a female obstetrician in Scotland of some experience announced in her evidence that she would allow Mrs Montgomery to labour she also said in her own words that she reassured her that if trouble arose in labour they could go to Caesarean section she told her nothing about the extremely hazardous risks of shoulder dissociate at all she didn't offer her Caesarean section because as she said later when you offer these women a Caesarean section they take it they accept it and it's not in the maternal interests in her opinion that women should have Caesarean sections let me cut to the chase Mrs Montgomery had her labour induced so in effect labour in this tiny woman was imposed upon her Prostaglandin was inserted into the vagina which is a hormonal process to start labour artificially she went into labour now remember Dr McClellan had told her that if a problem arose during labour you would go to Caesarean section a problem did arise in labour predictably labour became instructed the baby was very big after all and she was tiny but even then Dr McClellan did not go to Caesarean section progress stopped she administered Cintocinorm by intravenous drip a drug which augments the contractions of the neuterous and forces the baby down the birth canal the tragic thing happened it succeeded out came the baby's head his shoulder stuck and he was now asphyxiating tragically and I'm sorry to labour this but I do think it's important to know the facts they're wrong filled with people they tried the McRoberts manoeuvre it failed they tried superpoot pressure it failed and then I'm sorry to tell you that in fact Caesarean section was impossible once the head is out and the shoulder is stuck there is something called the Zaffanelli manoeuvre which in very very distant past and the people have tried to push the baby back up into the uterus and cut the mother open frankly in the obstetricians I've talked to say that absolutely out of the question so what did she do? she tried to cut through the mother's synthesis pubis separating the two halves of the pelvis which in the third world is a method of achieving release of a baby where they can't do a Caesarean section but she hadn't got the right kit so she only managed to cut halfway through the mother's synthesis pubis and then using forceps she managed to pull the baby out he was by now severely brain damaged from asphyxia he had an aevolts brachial plexus and he was crippled in his arm for life the case turned on a number of features which you can imagine but to cut a long story short it was defended on every front under the old law she'd asked questions and quite simply she should have been given a truthful answer about the risks under the old law the risk of 10% Lord Bridget said it was 10% she should have been told about it you may think that even under the old law this was a case in which they should not have defended but they did they defended on every count they said it was perfectly allright and called expert through not to tell her anything about the risks it was perfectly allright to induce her labour without offering her the option of Caesarean section they said it was perfectly allright not to go to section during the labour and they it depended they proceeded entirely on the Bolan defence inexplicable as it seems to the lawyers and doctors to whom I've spoken about this case and whom I've heard talking about it they defended it to the hilt and the judges in Scotland regrettably went along with the defence they managed to agree with the submissions of the defending lawyers that when she said will I be able to push this baby out safely this big baby that was not a question about risk but only as they put it an expression of generalised anxiety I asked my wife what she thought of that she's a veteran of some numbers of childbirth and she said well I can't think of much clearer way to ask about the risks of getting a big baby out through a small pelvis than to say will I be able to push it safely out but there we are anyway the end of the story was that the judges in Scotland both the trial judge and the three appeal court judges ruled against Mrs Montgomery's claim and the most surprising feature of all was this Mrs Montgomery was said by Dr Maclellan to be very frightened of vaginal birth so much so she needed to be reassured and so much so she did not even do the last measurement by ultrasound before she induced her because she knew the baby was getting bigger and it would only frighten her more the whole problem in the case seems to have stemmed from a purest application of bohan and a very strange interpretation of what actually happened in the case what we were left with therefore when we arrived at the Supreme Court was the perfect storm of facts in which to argue that she should have been given full information and offered the opportunity of Caesarean section and here came the oddest feature of the case as it was decided in Scotland Mrs Dr Maclellan said that if she'd offered Caesarean section Mrs Montgomery would have accepted and that's why she didn't offer it Mrs Montgomery said and you can tell it must have been true if I had been given the opportunity of Caesarean section I would have taken it the claimants or pursuer as they are calling in Scotland expert witnesses said well in our experience if you offer a small diabetic mother with a big baby of Caesarean section and tell her about shoulder dystosia she goes for section and not surprisingly the defence experts both said if you offer a woman in this situation a Caesarean section they accept it and they go for it and every obstetrician I've talked to in the south since the case came on has said, everyone has said to me in these circumstances not only would I offer it I would actually advise it I've heard a yes in the background I see Kevin Doldon there and I'm not sure if he's nodding but actually advise it well the defence argued that if he'd offered it she'd have refused it and the judges agree the judge of trial found that she would have refused it if offered it and the three appeal court judges thought that was a very sound finding what to make of it well we made enough of the facts and I've detained you long enough with them but they are as you I think you'll agree there are facts which have a very painful ring to them the influential case law showed that only in English law of the developed world were we still clinging to the professional approval principle of disclosure for consent and it's fair to say that in the American case of Canterbury and Spence in 1964 the American judges had said this respect for the patient's right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves and from the famous decision in Reval and Hughes in Canada in 1980 both be cited by the Supreme Court justices came this expert medical evidence is of course relevant to findings as to risks that reside in or our result of recommended surgery or other treatment it will also have a bearing on their materiality to be concluded on the basis of expert medical evidence alone the issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards what is under consideration here is the patient's right to know what risks are involved in undergoing or forgoing certain surgery or other treatment and it is true that we lag behind other American Canadian, Australian, New Zealand and all other European jurisdictions in clinging to Bolaam for this test shamefully as we would say and as I effectively I think was saying in the Supreme Court and remember even as long ago as 1914 the very famous American Justice Cardozo in a case called Schlowendorf a New York hospital had said this every human being of adult years and sound mind has a right to determine what shall be done with his own body and as I stand in Cambridge I think I should cite the six volume textbook entitled The Comparative Studies in the Development of the Law of Torts in Europe published by Cambridge University Press in 19 2010 in this section Development of Medical Liability which is edited by Dr Edward Pudius the editor himself wrote this should doctors this is 2010 should doctors inform their patients as to the risks of the treatment they propose it nowadays seems a truism to say that they should and yet there is one jurisdiction in the European Union where the law is or at least until recently was less settled than other member states and that he wrote to the surprise of many his English law and he then cited Sidaway I won't read out the passages but we were able to point in the Supreme Court to passages from decided cases since Sidaway in which very distinguished judges indeed had clearly pointed the way to what we were arguing must be the case in relation to consent Lord Wolf in a very well-known case called Piers in 1999 had said that in his view the law was that if there is a significant risk which would affect the judgment of a reasonable patient then in the normal course the patient should be told to be that was as long ago as 1999 and in the very much disputed case of Chester and Afshar and most of you will know Chester and Afshar even perhaps first year law students in 2004 Lord Bingham and Lord Stain both effectively said the same thing and indeed Lord Stain said that in modern law medical paternalism no longer rules and a patient has a primary or fasci right to be informed by a surgeon of a small but well established risk of serious injury as a result of surgery well those cases were influential indeed when we appeared in front of Lord Reed and his brother judges and so they should have been you may say small wonder that the facts in Mrs Montgomery's case were considered by the likes of me a storm of facts to raise this issue and small wonder that the English law has finally and very belatedly caught up with everybody else's law in the developed western world so what is the Montgomery decision I come to the important features now and I'm sorry if I've detained you perhaps a little too long in the build up to it but I hope you think that looking at the context in which the decision was made is a very important thing because we argued and the Supreme Court justices agreed that this case illustrated so clearly and so well why the principle of the Boland Test for Consent was wrong now what the Montgomery principle expressed by Lord Reed and Lord Kerr in the leading opinion that they gave or judgement as we now call them we used to call them opinions I should say just in passing when I was a young lawyer and was in some difficulty with a very vexed area of the law I have to say I didn't always rush to Lord Diplott's judgments for enlightenment the one that I remember as a young barrister finding wonderfully clear and helpful was the Scottish Lord Lord Reed spelled differently from the present Lord Reed but I know that the present Lord Reed is in that tradition and Lord Reed I commend him whenever you encounter him in the older cases in the decisions of the House of Lords if your law students do remember that he is always a model of clarity and certainty and that is what we look for in our Supreme Court justices now and what I am not at all embarrassed to say we found in the decision of Lord Reed and Lord Kerr in Montgomery what they have decided is this that the test now for information disclosure should mirror what has for a long time been the strong and mandatory guidance of the General Medical Council to its doctors they register all the doctors their guidance in this respect has been mandatory and it has existed in those mandatory terms since 1998 and indeed in a slightly less forceful form since about 1990 so the law was behind the GMC's mandatory guidance what they have said is that the patient centered sorry that the patient centered test is now the way in which the court should judge whether or not appropriate information has been given the doctor must and here comes the crunch take reasonable care to ensure that the patient is aware of any material risk involved in any recommended treatment and of any reasonable alternative or variant treatments and the test of materiality formulated by Lord Reed and Lord Kerr and the Supreme Court justices unanimously in their decision in Montgomery is this would in the circumstances of the particular case a reasonable person in the patient's position be likely to attach significance to the risk that's an objective look at a reasonable patient in the patient's position or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it now I just want to stress the word reasonable the key to all this contrary to some of the bleeding from a very small minority of doctors that has been aimed at me and at Lord Reed and the Supreme Court in Montgomery the key to it is going to be those words reasonable person in the patient's position reasonably aware risks attaching to any treatment or reasonable alternative or variant treatments we can dispense with the whining complaints that doctors will have to reel off an entire catalogue of ridiculously tiny risks which have been known to occur once in Saudi Arabia and twice in Alaska as the Supreme Court justices said Lord Reed said in his judgment that doctors are not therefore expected to bombard the patient with immense detail quite the contrary the test is what would a reasonable person in this situation be likely to attach significance to the doctor will simply have to take an intelligent and rational look at what that reasonable person would want and need to know and then to look at the patient himself or herself because patients have individual special characteristics which may influence what to that patient would be considered material patient centered test means what it says and remember this I have not yet been able to go to court to argue that the Bolan principle should not apply in cases concerning diagnosis and treatment I think my almost total retirement now at the age of 70 I'm sorry to tell you I promised my wife I would retire at 70 I made the promise when it seemed a long way off and last July came to pass and the divorce petition is in preparation if I don't keep my if I don't keep my promise but the truth is this and I wonder what you're thinking and I'm going to invite at the end questions about this do you think that in contrast to all other fields of expertise the medical profession should still be enabled by our law to cling on to a principle which makes them judges in their own courts or do you think like I do that whereas professional approval or professional agreement with what was done or not done will always be very relevant to a judicial decision about whether it was negligent or not it should not in any case be necessarily decisive and as I've said to you in its purest form in Bolaam it is necessarily decisive as in that terrible case I described of the baby being lifted out by its feet from the incision in the uterus I think that is a topic on which if I was going to stay at the bar I would want to take further and may I just pause in that regard and say this Lord Justice Jackson gave a lecture entitled Peter Taylor Memorial Lecture a year ago in London Lord Justice Jackson is not the most popular judge among the legal profession as some of you in this room will know he is the one who has made a huge onslaught on the fees which lawyers charge and the costs that they can run up and it is suggested in more quarters than one that Lord Justice Jackson's experience of the sort of work that most jobbing lawyers do was limited he was an Olympian at the bar he is the author of Powell and Jackson on professional negligence and his views of what it's like to conduct litigation may be very different from the experience of most lawyers on the ground but nevertheless he gave that lecture a year ago in which he discussed professional negligence liability and in it he said this that Bolaam has become less and less defensible over the years that it doesn't any longer be considered to apply to any other professions or expertise and it's been under continuous attack in medicine he said in Montgomery the invaders have breached the walls of Bolaam and he added that in years to come he foresaw that attacks would continue but Bolaam, the onslaught on Bolaam would be pursued and I can tell you this that's certainly true and I wonder whether you think it's right that it should fall because I certainly do and I come from an entirely medical family not only was my father director of clinical studies they call Oxford, knighted by the Queen for services to medicine but the following of my relatives was my father, grandfather two great uncles, five uncles and seven cousins both sides of my family are doctors, my mother says that when I was a little boy I used to say when I'm a doctor because I thought that when you grew up you were a doctor and so I've given a lecture in the past entitled I sue doctors why do I sue doctors, should I sue doctors which of course are central issues which Bolaam was intended to defend doctors against which is the kind of wholesale litigation factor which is said in America to lead to too much defence in medicine that's an issue which again has particularly young law students you will need to confront is it necessary to protect doctors by the strange exceptional and unique Bolaam principle or should we scrap it well my family whenever I mentioned any of my cases anonymised of course to them tended to say sue the bastards because they wanted the maintenance of very high standards and they wanted to know that tort law would apply as much to doctors and surgeons as it does to others after all as many have pointed out tort law unhappy there it may be for the person on the wrong end of it is there to regulate any behaviours in our daily life which may impact adversely on our fellow man and tort law applies across the board to us when we drive our cars chop down trees to people who design bridges, drive boats and so on tort law has an important function in any civilised society of regulating behaviours which may affect others of setting and policing the standards which the courts throughout history have done for our civilised society and for ensuring that those who do act in ways which are dangerous to others have in their mind's eye the possibility of the sanction of the law and yet Bolaam protects doctors from it in a most extraordinary way what are the problems that have arisen since Montgomery, I've got a little time to discuss them have I not it's just a few minutes the problems that have arisen as doctors see them are firstly the suggestion that it applies to doctors a split duty of care and a split standard of care in other words that they have to wrestle with the idea that on the one hand they have the professional standard when it comes to their decisions about diagnosis and treatment but on the other the kind of reasonable man or reasonable patient test which applies to how they describe what they're doing to the patient I've had that suggested and read it suggested as a bad thing but I do it or was doing it as a lawyer every day I decide for my client what the right course to take in let us say the litigation I'm conducting I do that on the basis of the professional skills and learning that I have and then because of course many further steps without the instructions of my client I've said about it staying to my client in terms of I think you will understand and appreciate what it is I'm advising and why, what the risks are and what the possible alternatives may be including for example discontinuing his litigation abandoning it so I do it every day the plumber does it he looks at what's wrong with your plumbing and he knows what's wrong with it and his special skill and expertise but before you're prepared to say go ahead and I'll pay you for it he has to explain it to you the spit standard is no problem at all and nor should it be considered such nor is the reasonable man test unless you disagree with me nor is the reasonable patient test a problem admitting of course as I must that the reasonable patient in the judge's mind may well be himself and the doctor's estimate of the reasonable patient may well be himself but these are things which I would suggest present no real problem in real life at all for intelligent doctors who apply their rational thought to the problem in hand as for the special risks which apply to given patients in my case a birch against university college hospitals NHS trust I commend a reading of birch to you before Montgomery was deciding mrs birch was a diabetic who'd had a number of vascular problems with her vision in the past they'd been met with what's called watch and wait and they'd gone away quite harmlessly she had come in with another one with a slight hint of something more serious but it was almost certain of course that it was just another diabetic vascular problem for she too was a diabetic she had to be investigated but unfortunately she fell among the surgeons at Green Square the physicians and they gave her the invasive catheter angiogram which you push into the groin and you push the wire up into the heart or even into the carotid in the neck and it carries a risk of stroke clombus and stroke and in her case being a diabetic there is learning that suggests the risk was greater for her than for others she could have had an MRI angiogram with no invasion and no risk they didn't give her the option they didn't tell her the alternative and she had a stroke paralyzed down one side and the judge said in that case which is in 2004 that of course the doctor should have given her the alternatives and discussed it with her so there is a special feature of the case don't forget that the subjective part of the gynnal test requires that look at the given patient anything special about this patient the court lawlords have said that if the patient expresses a strong and clear wish not to be told anything you may go ahead I advise the doctors be careful about that if there is a really serious risk of serious harm you may want to tell them anyway even if they say I don't want to hear it doc over to you so what else has exercised the doctors this is something you should consider carefully firstly the concern that patients are in general too stupid too inattentive too forgetful or I've heard it said too foreign in some London hospitals to be capable of understanding what is said to them by the doctors or making a reasoned decision and the doctor is uniquely placed to make decisions for patients and therefore should be allowed to ration and therefore doctor knows best the answer to this is that in the absence of valid consent it's unlawful to do anything to these patients so you're going to have to make sure that you learn you're not good at it as the law lords said in Montgomery you've got to learn to convey difficult concepts simply in a way that patients can understand secondly I have to say and this is true that doctors have a very great shortage of time both the GP who has a few minutes for his consultation and the hospital doctor who has I understand often just as few they're worried that there isn't time to achieve the proper balance of information to patients and to them I say I'm sorry it's a fundamental human right indeed article 8 was invoked in Montgomery and referred to in the Supreme Court Justices judgment it is a fundamental human right that we determine what should be done with our own body now there may be those among you who think no doctor knows best has its face they're uniquely faced to decide what's best for us let them do it but when they tell us about it and ask us to think we can only get muddled up and we'll make silly decisions that's something which we could debate but my view is they've got to get on with it and make time somehow and the NHS is going to have to suffer a sea chain what about uncertainty now Lord Reid and Lord Kerr acknowledge what the defendants and doctors claim which is that the new test gives uncertainty to those of us in the population who are considering consenting or not consenting and to doctors about the test which will be applied if I may say so the real uncertainty which mattered was the uncertainty for you and me as the patients the uncertainty was perfectly playing before Montgomery and it was this you had no idea what sort of doctor was confronting you when he said I'm going to cut your leg off you didn't know whether he was among that small school of doctors who might take the view that it's better not really to tell you anything because you're probably too stupid to understand or he might be and it was lottery which doctor you got one of those who thought to sit down and tell you everything that mattered about what he was going to do with you it was a lottery there was no predictability at all and no certainty and you know in legal principle in this country it has always been held that one of the sacred principles of society is that we should have some certainty from the law so unpredictability and uncertainty was a feature of the idiosyncratic whim of doctors if that was the test for whether they had to tell you or not now I have to say that I've gone on perhaps rather too long but clearly there are major considerations for you as lawyers and for you as doctors and for the academics to consider here I don't like the Bolan test you've got that message largely here I was talking to doctor Catherine Liddell beforehand and she raised me something which I'm afraid I wasn't really able to answer which is does it apply to medical research all I felt able to say and it's a topic which we might want to discuss is that it seemed to be it would certainly apply to doctors who are submitting guinea pig patients trials and we've had in recent times in very unpleasant cases where trials have led to terrible hardship and even death whether it would apply more generally to research doctors in other sorts of activity I have not yet had occasion to encounter what about nurses what about midwives what about other health professionals who now take on a lot paramedics as Catherine Liddell raised with me people who take on quasi medical roles where does it end where do we limit it I have to say that in modern times Bolan in my experience has effectively been limited to doctors and surgeons but technically I suppose it would be arguable if it applied to those other quasi medical functions I think I've gone on long enough but I hope I've raised enough topics to interest you and I hope that it's caught your imagination that the barristers the jobbing barristers a long way from the groves of academia have in some instances to take account of very very deep and philosophical questions the status of a patient the moral position of doctor when he's handling this patient and so many considerations about what is good for patients and what is good for society could I end by just telling you that there is something named after the Babenock family I'm afraid it's a piece of kit used in male uro genital surgery and it's called the Babenock pull-through on that note I think I've had a shock My colleague Dr Catherine Liddell asked me if I would make a vote of thanks and then also share questions and answers though I'm quite sure Mr Babenock is quite capable of deciding which questions to answer himself from these very spirited performance Kathy also asked if I'd say who I am well I'm here partly because I am at least till the end of next week the chairman of the managers of the Cambridge for Hayden Delancey fund in which capacity may I add my thanks to Kathy's thanks to the Jersey trustees and to bid them heartily ac bell com and of course it's thanks to you the generosity of that fund years ago that we're able to run these lectures secondly I was involved in that because until I retired into 2013 I used to lecture in all of this and all these cases that Mr Babenock was telling us about popped up like old friends when he was mentioning them again but I also thought how his excellent lecture chimed in with a number of things that have come up in other lectures in this series that have been given we heard a lecture from Baroness Butler's loss which involved a number of questions of consent that actually touched upon some of those Jehovah's Witness cases we heard last year from Professor Mavis from the Netherlands all about euthanasia on assisted dying in the Netherlands which involved questions of consent we've had a lecture from Professor Lachman which touched on questions of defensive medicine and we had another lecture some years ago now about expert evidence so that spirited lecture tied in extremely well and thank you when I read the Babenock case I couldn't believe the Scottish judges had been so stupid as actually to decide it the way they had on the astonishing facts I would have thought if any case deserved to be one even under sit away that was a case of the crime of Truth of One I was last night talking to somebody who used to practice now a judge whose father was a lawyer who tends to go in families like being doctors does I think and he said my father used to say take care of the facts and the law will take care of itself and I would have thought that this case was the classic case where that was so if I were in Italy making a vote of thanks I would have to repeat the lecture in order to show I paid good attention but we're not just in England and so all I have to do is to say from the bottom of my heart how much I enjoyed it and to tell the first year students how useful I'm sure they're going to find it as well and to say how much I agree with his praise of two lords read one who gave the judgment here and also the old one the judge that I used to like to read when I was a student too so thank you once again let's show our appreciation and then the questions