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News Clinical Negligence 15th Feb 2017

QC and lawyer secure landmark ruling at the Court of Appeal

A leading barrister at Kings Chambers has secured a landmark victory at the Court of Appeal in a case which asserts patient choice over medical paternalism.

Satinder Hunjan QC successfully represented Heather Butler in her case against Burton Hospitals NHS Foundation Trust after a failure to induce her pregnancy resulted in her child being born with severe disabilities.

Her son Sebastian suffered brain damage after his umbilical cord was compressed, starving him of oxygen in the days prior to his delivery.

The court heard that had Ms Butler been induced Sebastian would have been born in an entirely normal condition but that it was the preference of her consultant obstetrician and gynaecologist that she should not be.

Speaking after the case, Mr Hunjan QC said:

“The Court has established that we are in a modern era of age and consent – these cases have application in all areas of medical and related advice and consent.

They set out the standards of advice which medical practitioners must give to patients to enable patients to make appropriate choices.

The advice which is given must be clear, comprehensible, it must deal with the alternatives which are available to the patient and, importantly, the advice must be given dispassionately and without seeking to pressurise the patient to a particular course of medical treatment.”

The case marks the first time the Court of Appeal has acted to overturn a ruling and find in favour of parent choice.

Karen Reynolds, a Partner at Freeths, has been representing Ms Butler for over a decade during the course of the legal action. Karen has over 20 years’ experience dealing with cerebral palsy claims. She is a member of the AVMA and Law Society Specialist Clinical Negligence Panels and in the last 12 months she has settled claims with a value in excess of £30 million.

Karen commented: “The claimant’s mother has fought a long and difficult battle to show that patients have a right to be informed about the risks involved in their treatment and make decisions accordingly.

During the case The Court heard that if the wishes of Ms Butler had been followed Sebastian’s disabilities would have been avoided, and that the consultant obstetrician and gynaecologist Mr Hollingworth had been negligent in failing to monitor the pregnancy with repeat ultrasound scanning.

An ultrasound scan had shown that the foetus was small and that there was disproportion between the head and abdominal circumferences.

Mr Hollingworth contended that even if these features had been identified with further examinations he would have been reassured about the health of the foetus and would not have carried out an induction.

However, the Court heard there was some emerging evidence, although the statistical base was extremely small, that there were additional risks in delaying labour.

Mr Hunjan QC argued that Ms Butler would have wished to have been induced if there was any suggestion of increased risks in delaying labour as it was here stimated delivery date.

The Court of Appeal found that the decision of the patient may be based upon many factors, which included the patient herself and that it was for the patient to decide the risks they wished to take concerning their body – including the risks posed to a foetus.

The role of the doctor, it ruled, was as a medical advisor and not the decision maker.

It was not a defence for the doctor to say there were other doctors who would have acted in the same say and that such a defence was not supportable when it comes to the question of the advice and consent of a patient.

Karen Reynolds

Author: Karen Reynolds

Partner & Head of Clinical Negligence for Derby, West Midlands & North West

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