Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland)

are an example: see Rees v Darlington Memorial Hospital NHS Trust [2003]
UKHL 52, [2004] 1 AC 309). Thus, as Jonathan Herring puts it in Medical
Law and Ethics (2012), 4 th ed, p 170), “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”.
109. An important consequence of this is that 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: see the
approach of the General Medical Council in Consent: patients and doctors
making decisions together (2008), para 5, quoted by Lord Kerr and Lord
Reed at para 77 and approved by them at paras 83 to 85.
110. Pregnancy is a particularly powerful illustration. Once a woman is pregnant,
the foetus has somehow to be delivered. Leaving it inside her is not an option.
The principal choice is between vaginal delivery and caesarean section. One
is, of course, the normal and “natural” way of giving birth; the other used to
be a way of saving the baby’s life at the expense of the mother’s. Now, the
risks to both mother and child from a caesarean section are so low that the
National Institute for Health and Clinical Excellence (NICE clinical
guideline 132, [new 2011] [para 1.2.9.5]) clearly states that “For women
requesting a CS, if after discussion and offer of support (including perinatal
mental health support for women with anxiety about childbirth), a vaginal
birth is still not an acceptable option, offer a planned CS”.
111. That is not necessarily to say that the doctors have to volunteer the pros and
cons of each option in every case, but they clearly should do so in any case
where either the mother or the child is at heightened risk from a vaginal
delivery. 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 aftereffects.
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.
112. It was well recognised in 1999 that an insulin-dependent diabetic mother
could have a larger than average baby. This brings with it a 9 to 10% risk of
“mechanical problems” in labour, either that the baby’s head will fail to
descend or, worse still, that it will descend but the baby’s shoulders will be
too broad to follow the head through the birth canal and will therefore get
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