Emma Ashworth is a Nurturing Birth doula, a trustee of AIMS and she is currently the AIMS Journal Editor. She has a special interest in consent and has written extensively on women’s rights in birth.
What is the Montgomery ruling?
‘Montgomery’ refers to a legal case, formally known as ‘Montgomery V Lanarkshire’, where Montgomery is Mrs Nadine Montgomery, and Lanarkshire is the Lanarkshire Health Board in Scotland. The case was brought after Mrs Montgomery’s son was severely injured during his birth. During pregnancy, Mrs Montgomery was very concerned about her forthcoming birth because she felt that her baby was too big for her to birth vaginally. She had diabetes, was very small herself, and the baby appeared to be large. However, her obstetrician did not offer her a caesarean birth as an option to consider.
During the birth, Mrs Montgomery’s son experienced a very severe shoulder dystocia. After a variety of interventions he was born by caesarean, and now lives with cerebral palsy and a damaged shoulder.
The injuries that occurred during his birth are rare, and, statistically speaking, were unlikely to occur even with the risk factors that Mrs Montgomery had. However, the legal case came about not because of the complications themselves, nor how they were handled, but because the obstetrician made the decision to not share the information about the possible outcomes of a vaginal birth and a caesarean with Mrs Montgomery, thus stopping her from being able to make an informed decision herself over what was right for her. Ultimately, the case came down to whether or not information was shared to support informed decision making – and, the case found, it was not.
What did it change about consent and birth?
Before the Montgomery case, what doctors shared with pregnant women depended, basically, on what other health care providers were sharing. They could decide to limit what information they shared with women as long as other doctors were doing the same. This was known as the ‘Bolam Test’, and it states, “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”. This applied to all areas of medicine, and led to many outdated principles still occurring (eg immediate cord clamping) because, from the practitioner’s point of view, if they did what most other doctors did, they had more protection against being sued.
With Montgomery, all this changed. Rather than just relying on what most other people did, practitioners are now obliged to share information on ‘all material risks’, meaning any risk (of an intervention or NOT intervening) that might be important to that pregnant woman or person, irrespective of what was normally done by their colleagues. If followed, this gives the pregnant person information they need to be able to make an informed decision about their own care.
Why do doulas need to know about it?
Sadly, no single legal ruling can resolve all of the problems that we have within the maternity system. Montgomery has given us a hugely valuable legal framework to support informed decision making. It means that the pregnant woman or person must be offered information to ensure that they are able to make an informed decision about their care. If your client isn’t experiencing this, you can suggest that they raise this as an issue with their health care provider, and remind them that they alone can make decisions about their body.
Unfortunately, there are downsides to this ruling in practice, if not within the aims of the law. The ruling states that providers should ensure that they take “reasonable care” to ensure that “patients” are aware of “material risks”.
The text reads, ‘The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’
What this should mean is that individualised care is offered, with doctors and midwives ensuring that women are given information that is relevant to them, personally, depending on their personal needs and wishes. What is happening in reality is that doctors and midwives misunderstand this to mean that they have to tell women of every possible horrific outcome that might happen if they decide to decline an intervention, or birth outside the hospital. They seem to be forgetting that their obligation is to offer a balanced picture of all of the material consequences of interventions and non-intervention (when was the last time that you heard all the potential risks of an induction, for example?), and they also seem to be forgetting that women are not obliged to listen to any of this!
Pregnant women are still autonomous beings, and they alone can decide what they want to hear. Our clients do not have to attend meetings with doctors or midwives who they don’t feel are supportive of their rights or decisions if they don’t want to. They don’t have to listen to a stream of possible horrific outcomes if they don’t want to. If they want the information, they can choose to ask for another midwife or doctor, and they can point out that being told only one part of the picture is coercion, not informed consent, and is going against the Montgomery ruling just as much as not being offered information is.
The online content of Nurturing Birth’s Expansive Doula Course has a video on consent which includes information on Montgomery. This presentation is also available to Nurturing Birth graduates who purchase the online modules after completing their Intensive Doula Course.
AIMS has published a helpful article on the Montgomery ruling by a solicitor who looks at the ways it can be used in medical negligence cases within maternity: https://www.aims.org.uk/journal/item/montgomery
The MDU (Medical Defence Union) has a web page on Montgomery which clearly explains the legal situation: https://www.themdu.com/guidance-and-advice/guides/montgomery-and-informed-consent
Birthrights is continuing its work on consent, following the Montgomery ruling, by offering workshops to midwives and doctors on this topic, and they are part of a team launching an app for women to use in labour: https://www.birthrights.org.uk/campaigns-research/montgomery-and-consent/