EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Hardie Lord Emslie	[2013] CSIH 3 A296/06 OPINION OF THE COURT delivered by LORD EASSIE in causa N M Pursuer and Reclaimer; against LANARKSHIRE HEALTH BOARD Defenders and Respondents: _______________

Pursuer and Reclaimer: MacAulay, QC; L Sutherland; Balfour + Manson LLP

Defenders and Respondents: Anderson, QC; McKenzie; Scottish Health Service Central Legal Office

23 January 2013

Introductory

[1] The pursuer and reclaimer in this action seeks reparation on behalf of her son in respect of the grave injury which he sustained at the time of his birth in a maternity hospital run by the defenders and respondents on 1 October 1999. She attributes that injury to negligence on the part of a consultant obstetrician, Dr McL, employed by the defenders at that hospital. Following a proof, the Lord Ordinary concluded that negligence had not been established and he assoilzied the defenders. The pursuer reclaims against that decision.

[2] In paragraph [9] of his opinion the Lord Ordinary sets out a number of factual matters about which there was essentially no dispute. Among others, the pursuer had not previously given birth to a child. She is of relatively small stature, her height being 1.55m. She suffers from diabetes and consequently attended the combined obstetric and diabetic ante-natal clinic at the maternity hospital. Women who suffer from diabetes are likely to have larger than average babies and the pursuer was made aware of this during the course of her pregnancy. Such women are at greater risk of presenting mechanical problems when giving birth, either through cephalopelvic disproportion resulting in the baby's head failing to descend, or through shoulder dystocia, in which the baby's shoulder or shoulders may become lodged above the pelvis. There is also greater risk of foetal abnormalities and stillbirth in later stages of pregnancy. For these reasons the pursuer's pregnancy was regarded as a high risk pregnancy requiring intensive monitoring.

[3] During her pregnancy the pursuer attended regularly at the ante-natal clinic. Repeated ultrasound examinations were conducted in order to assess foetal size and growth. Such examinations were performed on 12 February, 25 February, 17 March, 31 March, 19 May, 25 May, 21 July, 18 August, 1 September and 15 September 1999. At the 28^th week of the pursuer's pregnancy the estimated foetal weight was between the 50^th and 95^th centile; at 32 weeks and 34 weeks, it was just below the 95^th centile and at 36 weeks (namely on 15 September 1999) it was just on the 95^th centile. No ultrasound scan was arranged for week 38, since Dr McL considered it would not be psychologically beneficial to the pursuer to have a further scan. On the basis of the results of the scans and clinical examination Dr McL estimated the birth weight of the baby at 3.9kg. It is generally accepted that ultrasound indications of weight have a margin of error of plus or minus 10% of the indicated foetal weight.

[4] On 29 September 1999 the pursuer was seen by a registrar, Dr I, and arrangements were made for labour to be induced on 1 October 1999. The pursuer attended at the hospital on the evening of 30 September 1999 and prostaglandin was administered to her with a view to inducing labour. At about 0545 hours on 1 October 1999 labour began and from that time onwards the baby's heart rate was monitored by cardiotocography ("CTG"). The CTG trace also monitored the mother's contractions.

[5] Labour progressed to the extent that at 0930 hrs the cervix was 6-7 cms dilated and the baby's head was in the "LOA" position, favourable for vaginal delivery. Thereafter however the pursuer underwent a secondary arrest of labour. Following administration of syntocinon at about 1300 hrs labour resumed and when the pursuer was examined at about 1600 hrs by Dr McL the cervix was fully dilated with the foetal head 1cm above the ischial spines.

[6] The pursuer was seen again by Dr McL at 1700 hrs and a decision was taken to attempt a forceps delivery. The pursuer was transferred to theatre, where Dr McL proceeded to attempt such a delivery. At 1745 hrs the baby's head was delivered but thereafter the baby became subject to shoulder dystocia. Various techniques were attempted to free the baby but it was not until 1757 hrs that he was finally delivered. Unfortunately, during those 12 minutes the umbilical cord was completely or partially occluded, thereby depriving the baby of oxygen. As a consequence of that deprivation the baby suffered injuries which have left him with cerebral palsy, and a brachial plexus injury resulting in an Erb's palsy, producing serious permanent disabilities. Given those very grave consequences, we have naturally found this to be an anxious and difficult case, but it will be appreciated that the role of this court is that of reviewing, in so far as it is open to an appellate court to do so, the decision of the Lord Ordinary on the particular grounds of action advanced in the case.

The grounds of action

[7] The grounds upon which it was submitted to the Lord Ordinary that Dr McL had been at fault embraced two distinct branches.

[8] First, in respect of the ante-natal care of the pursuer, it was contended that the pursuer ought to have been given specific advice about the risks, in vaginal birth, of cephalopelvic disproportion and, particularly, shoulder dystocia and she should have been offered and counselled upon the option of delivery of the baby by caesarean section. No competent obstetrician, acting with reasonable care, would have omitted to tender that advice. Had the pursuer been properly informed about the risks entailed in vaginal birth she would, it is averred, have elected to be delivered of her baby by caesarean section.

[9] The second branch of the case advanced against the defenders concerned the management of the pursuer's labour. The criticisms advanced under this branch turned principally on the interpretation of the CTG trace and the steps which it was contended should have been taken in response to what was indicated by the trace. In particular, it was submitted to the Lord Ordinary on behalf of the pursuer that at any of four points in the course of the labour on 1 October 1999, namely at 0810 hrs, 1230 hrs, 1345 hrs and 1600 hrs approximately, the CTG trace showed features which no competent obstetrician exercising reasonable care would have interpreted otherwise than as requiring the taking of a foetal blood sample, which failing the carrying out of a caesarean section. Much of the expert evidence tendered by both parties was concerned with what was to be seen on the trace, its interpretation and whether omission to pursue the intervention desiderated - namely the taking of a foetal blood sample or performance of a caesarean section - would constitute a negligent failure on the part of an obstetrician.

[10] The argument advanced in the reclaiming motion similarly fell into two chapters, which for convenience were referred to by counsel as the "consent issue" and the "management of labour issue". However, as regards the latter, while the pursuer's submission to the Lord Ordinary had been to the effect that there was such a failure to intervene at four points or stages during the course of the labour, the submissions advanced on the pursuer's behalf in the reclaiming motion respecting the management of labour were confined to the last of the points or stages, namely the examination by Dr McL of the pursuer and the CTG trace at approximately 1600 hours.

The consent issue

[11] Since the matters canvassed in this chapter of the reclaiming motion are concerned in broad terms with duties to give advice about risks it is, we think, useful to preface consideration of those issues by reference to the evidence respecting risks concerning shoulder dystocia. This evidence came principally from Dr McL and was not disputed to any material extent. In the case of diabetic women giving birth to a baby having a birth weight of or over approximately 4kg, shoulder dystocia might occur in approximately 9 to 10% of cases. However, in the vast majority of those cases the problem was dealt with by simple midwifery procedures, with the mother often being unaware of any problem having occurred. Only in about 1 in 500 of that 9 to 10% of cases did shoulder dystocia result in brachial plexus injury; and of the small number of babies with such an injury, the percentage of those sustaining more severe injury such as cerebral palsy was very small.

[12] As the Lord Ordinary records in his opinion, there were two branches to the case advanced on behalf of the pursuer in respect of the duty on Dr McL to provide ante-natal advice on risks.

[13] In summary, first, it was submitted that there was a duty upon the obstetrician, voluntarily and in the absence of any inquiry, to advise a diabetic mother such as the pursuer of the risks of shoulder dystocia. The Lord Ordinary was naturally referred to the leading case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others [1985] 1 AC 871- "Sidaway", but counsel for the pursuer sought to invoke Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167 - "Pearce" - as innovating on Sidaway and formulating the duty upon the medical practitioner as being that of informing the patient of any substantial risk which would affect the judgment of a reasonable patient. Under reference to the judgment of Nicol J in Jones v North West Strategic Health Authority 2010 MLR 90, counsel for the pursuer contended to the Lord Ordinary that it was the 10% risk of the mere occurrence of shoulder dystocia, and not the much smaller risk of an adverse outcome should shoulder dystocia occur, which mattered; and on that basis the risk was such that, notwithstanding the expert evidence of medical practice which was supportive of Dr McL's approach of not discussing shoulder dystocia and its risks with the pursuer, the pursuer should have been told about the 10% chance of shoulder dystocia occurring. The Lord Ordinary rejected both contentions. He did not regard the judgment in Pearce as innovating on Sidaway; and, rejecting the views of Nicol J, he took the view that the risk which the practitioner required to contemplate in judging what advice to give to the patient was the risk of a serious adverse outcome. On that approach, the risk of an adverse outcome, were shoulder dystocia to be encountered, was so small as not to justify alerting the patient. In the view of the Lord Ordinary, the expert evidence of practice to that effect could not be shown to be flawed by its lacking rational basis.

[14] The second limb of the argument under the consent chapter proceeded upon evidence given by the pursuer of her having specifically questioned Dr McL about the risks of vaginal delivery but without receiving any adequate response. In light of what was said by Lord Bridge in the course of his speech in Sidaway, were the practitioner to be asked about a specific risk, or risks, it was the duty of the practitioner to answer that inquiry honestly. Before the Lord Ordinary counsel for the defenders did not dispute that proposition but joined issue on whether the evidence of the pursuer that she had made specific inquiry of Dr McL respecting such risks could be accepted, the evidence of Dr McL being that no such inquiry had been made. Dr McL accepted that, at least on 15 September 1999, the pursuer had expressed a concern as to whether she would be able to deliver the baby vaginally, to which Dr McL responded by expressing her opinion that the pursuer ought to be able to do so but if matters proved otherwise, resort could be had to caesarean section. In the event, the Lord Ordinary came to the view that while the pursuer may have expressed that concern he was unable to accept the pursuer's claim that she had presented particular inquiries to Dr McL respecting the risks of vaginal birth. In short, he found that while she had on 15 September 1999 expressed a concern as to her ability to deliver vaginally, and had been reassured, she had not raised any question of particular risks at the ante-natal stage.

[15] In their presentation of the reclaiming motion counsel for the pursuer accepted, as respects the second limb (the addressing of specific questions regarding risk), that the Lord Ordinary's findings on credibility and reliability were essentially not open to challenge. But they contended that the pursuer's expression to Dr McL on 15 September 1999 of concern about her ability to deliver vaginally should nonetheless be seen as equivalent to such a specific inquiry. However, the principal focus of the argument for the pursuer and the reclaimer was on the first branch of the consent issue chapter, namely the more general question of the duty of the practitioner (absent any direct inquiry as to risks, or communication equivalent to such a direct inquiry) voluntarily to give advice and the test to be applied in determining that duty. We shall consider first that principal focus, and thereafter the secondary or subsidiary argument that an expression of concern be equiparated with a specific inquiry as to the risks of a specific adverse outcome of the procedure in issue.

The principal focus

[16] The theme running through the submissions of counsel for the reclaimer on the principal argument under the consent issue was that while the duty of the practitioner to advise of risks had earlier appeared to have been settled by the majority view of the members of the Judicial Committee of the House of Lords in Sidaway in terms of what might be described as the normal test for professional negligence set in England and Wales by the decision in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, and in Scotland by the decision in Hunter v Hanley 1955 SC 200, the law since Sidaway had moved on. Much greater focus was now given in the law to the concept of patient autonomy.

[17] The way in which the argument for the pursuer was developed may, we think, be summarised thus. One - and no doubt the traditional - view of what was decided by the majority in Sidaway was that assessing the risks of adverse outcome and deciding whether the patient should be advised of those risks were primarily matters of professional judgment for the medical practitioner concerned. The practitioner could not be faulted if he followed the practice of a responsible body of medical practitioners. The converse view was that while the court might be instructed by medical evidence as to what, as a matter of medical knowledge and science, the risks in a given case might be, it was essentially for the court to decide whether there was a duty to warn the patient of the relevant risk, in casu the risk of shoulder dystocia. The majority of the Judicial Committee in Sidaway had approached matters in ways which differed in at least some respects. But Lord Bridge, while endorsing the general approach, recognised that there might be exceptional cases in which the court should override medical practice as to what should be conveyed to the patient where the risk was so obviously substantial that the court could say that no practitioner could reasonably omit to warn the patient. Likewise, in the later case of Bolitho v City and Hackney Health Authority [1998] AC 232 it had been acknowledged that there was a similar possible override of the medical consensus. So there was a place for the court to view matters from the patient's perspective, rather than that of medical practice.

[18] Proceeding from that foundational position, the argument for the pursuer continued with the submission that the judgment of Lord Woolf MR (with whom the other judges agreed) in Pearce represented a significant shift of focus away from the Sidaway approach towards the perspective of the patient. It now placed the focus more directly on patient autonomy. The particular passage in the judgment of the Master of the Rolls which brought about that shift of focus was, it was said, paragraph [21]:

"In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt".

According to counsel, it was instructive to see how that passage had been seen in decisions at first instance in England and Wales. Reference was made to Wyatt v Curtis & Central Nottinghamshire Health Authority [2003] EWCA Civ 1779, paragraph 13 and paragraph 16, both of which described the passage as a "refinement" and to Jones v North West Strategic Health Authority, paragraph 24.

[19] Paragraph [21] of the judgment of the Master of the Rolls in Pearce was also referred to in the opinions delivered in the House of Lords in Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. While it was accepted by counsel for the pursuer that such references were obiter, no criticism had been made of what had been said by the Master of the Rolls. Further, in the opinions delivered in Chester v Afshar there were further indications of a greater awareness of patient autonomy - cf Lord Steyn paragraph 16; Lord Hope, paragraphs 54 and 56; and Lord Walker paragraph 92.

[20] Senior counsel for the pursuer frankly summarised the issue in this branch of the case as being whether the decision in Pearce had effectively changed the law as it had previously been understood following the decision in Sidaway. On the assumption that it did, a diabetic pregnant lady should, from her perspective, be advised of the risk of shoulder dystocia notwithstanding that the chances of a grave outcome were very small. The evidence disclosed that were that risk to be communicated to her, any such mother would call for a caesarean section. Reference was made in particular to two passages in the evidence of Dr McL, namely at volume 4, page 58 and volume 5, page 53.

[21] In approaching this submission for the pursuer, we find it convenient to begin with Sidaway. The issue before the House of Lords in that appeal was whether in advising a patient about the risks entailed in a particular treatment or surgical operation a medical practitioner was subject to the same test of professional negligence as applied in diagnosis or treatment, namely the test approved in Bolam v Friern Hospital Management Committee, or whether the practitioner was subject to a different test of liability, developed in certain decisions in North America, particularly Canterbury v Spence (1972) 464 F.2d 772 and stemming from the need for consent on the part of the patient before any surgical or medical treatment would be lawful and not constitute an assault. Although differing to some extent in the expression of their reasons, Lord Diplock, Lord Bridge (with whom Lord Keith agreed) and Lord Templeman all concluded that, in advising of the risks of an adverse outcome, essentially the same test of liability applied as was applicable in the other aspects of medical practice. Thus Lord Diplock concluded, at page 895E:

"To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied".

Having referred to the argument against the application of the Bolam test which had been set out in the judgment of the Supreme Court of Canada in Reibl v Hughes (1980) 114 DLR (3d) 1, Lord Bridge at p.900 said :

"I fully appreciate the force of this reasoning, but can only accept it subject to the important qualification that a decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment. It would follow from this that the issue whether non-disclosure in a particular case should be condemned as a breach of the doctor's duty of care is an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test. But I do not see that this approach involves the necessity 'to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty'. Of course, if there is a conflict of evidence as to whether a responsible body of medical opinion approves of non-disclosure in a particular case, the judge will have to resolve that conflict. But even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the ten per cent risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes, 114 D.L.R. (3d) 1. In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient's right of decision, could hardly fail to appreciate the necessity for an appropriate warning".

At page 904D Lord Templeman observed:

"Whenever the occasion arises for the doctor to tell the patient the results of the doctor's diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. At the same time the doctor is not entitled to make the final decision with regard to treatment which may have disadvantages or dangers. Where the patient's health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor and therefore the doctor impliedly contracts to provide information which is adequate to enable the patient to reach a balanced judgment, subject always to the doctor's own obligation to say and do nothing which the doctor is satisfied will be harmful to the patient".

[22] Lord Scarman took a different view from the other members of the Judicial Committee of the House. On the central issue of law he favoured "the prudent patient" test. At page 889G he stated:

"My conclusion as to the law is therefore this. To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient's position would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if upon a reasonable assessment of his patient's condition he takes the view that a warning would be detrimental to his patient's health".

While senior counsel for the pursuer did not go so far as to submit that in Pearce the Court of Appeal had approved and applied Lord Scarman's dissenting approach, he accepted that the test which it was sought on behalf of the pursuer to identify from the terms of the judgment of the Court of Appeal in Pearce was "very close" to that dissenting view of Lord Scarman.

[23] We accordingly now turn to Pearce v United Bristol Healthcare NHS Trust. Briefly, the facts were that Mrs Pearce had a consultation with her treating consultant obstetrician when she was 14 days over term in her pregnancy. She requested that the birth be induced or that she have a caesarean section. She was advised that either of those courses presented risks and that it was better that she should wait. She was not advised of any increased risk, by reason of the pregnancy continuing, of the baby being stillborn. The baby later died in utero and was delivered stillborn. The issues before the Court of Appeal related to the consultant's not having advised the appellant, Mrs Pearce, of any increased risk of stillbirth with the passage of further time when she was over term.

[24] As already mentioned, the passage in the judgment delivered by Lord Woolf MR upon which counsel for the pursuer principally founded in submitting that an approach or test different from that indicated by the majority judgments in Sidaway was now to be applied was paragraph [21]. For convenience we reiterate the terms of that paragraph:

"[21] In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt".

While it may be that taken wholly in isolation the passage might be suggestive of a "reasonable patient" approach, contrary to the approach of the majority in Sidaway, we are persuaded that when the judgment is read as a whole it is evident that the Court of Appeal was not departing from the majority view in Sidaway that the test for liability for failure to warn of risks was essentially the Bolam test.

[25] The Master of the Rolls began his consideration of Sidaway at paragraph [15] of the judgment. He said of Lord Scarman's speech in that case:

"The views he expresses are a minority view and do not in this jurisdiction represent the law, although they do reflect the law in the United States and, to some extent, in Canada. They also reflect the developments which have taken place in the law since that decision was given in Australia".

In the succeeding two paragraphs the Master of the Rolls went on to quote passages from the speeches of Lord Diplock and Lord Bridge in Sidaway which are essentially those which we have already set out. Of the speech of Lord Templeman the Master of the Rolls said at paragraph [19]:

"[19] While recognising that Lord Templeman's approach is not precisely that of the majority, it seems to me that that statement of Lord Templeman does reflect the law and does not involve taking a different view from the majority".

And before coming to the particular paragraph - [21] - upon which counsel for the pursuer and reclaimer relied, the Master of the Rolls quoted in paragraph [20] the passage in the speech of Lord Browne-Wilkinson in Bolitho v City & Hackney Health Authority in which his Lordship observed that, in rare cases in which the Bolam test would otherwise apply a prevailing professional standard, the court might yet override that test. Accordingly, the cases to which the Master of the Rolls referred in paragraph [21] of his judgment as founding his views are essentially Sidaway and Bolitho. Having adverted in paragraph [22] to the observation of Lord Bridge in Sidaway that a "significant risk" - sic, the adjective used by Lord Bridge was in fact "substantial" - might be something in the region of ten per cent, and evidence from an expert obstetrician that a risk of that order would, in his practice, give rise to a duty to warn, the judgment of the Master of the Rolls then continued in paragraph [23]:

"[23] Obviously the doctor, in determining what to tell a patient, has to take into account all the relevant considerations, which include the ability of the patient to comprehend what he has to say to him or her and the state of the patient at the particular time, both from the physical point of view and an emotional point of view. There can often be situations where a course different from the normal has to be employed. However, where there is what can realistically be called a 'significant risk', then, in the ordinary event, as I have already indicated, the patient is entitled to be informed of that risk".

[26] In these circumstances we do not consider that the decision of the Court of Appeal in England and Wales in Pearce does other than follow, and endeavour to apply, the majority view of the House of Lords in Sidaway. Plainly the decision in Sidaway was binding upon the Court of Appeal, as, effectively, it is upon us. Counsel were, moreover, able to confirm that the judgment delivered by Lord Woolf in Pearce was delivered ex tempore and it might be thought unlikely, if it were the intention of the Master of the Rolls or the other members of the Court of Appeal materially to refine or qualify what was decided in Sidaway, that this would be done otherwise than in a reserved judgment.

[27] As respects the particular reference made by the Master of the Rolls in paragraph [22] of his judgment in Pearce to that part of the speech of Lord Bridge (in the passage set out above) in which Lord Bridge refers to a ten per cent risk of a stroke or other grave consequences being such a "substantial risk" that a doctor could hardly fail to appreciate the necessity for an appropriate warning, it may well be that, as advanced by counsel for the defenders, this foreshadowed the later observation by Lord Browne-Wilkinson in Bolitho that in the fields of diagnosis and treatment there may well be exceptional cases in which the court might conclude that a particular, albeit recognised, medical practice or school of thought lacked a sufficient rational basis. In those circumstances the court could, in effect, override that medical practice or school of thought (cf Honisz v Lothian Health Board 2008 SC 235).

[28] We naturally do not overlook that, as counsel for the pursuer pointed out, paragraph [21] of the judgment in Pearce was later quoted by the majority of the House of Lords in Chester v Afshar, in which however the only issue was one of causation. For our part, we are unable to see in that quotation any recognition that in the judgment delivered in Pearce the Court of Appeal had departed, or advanced, from Sidaway, or that what was said by the majority of their Lordships in Sidaway required to be revisited or revised.

[29] Lastly, on this particular branch of the case, we mention that at points in the argument advanced for the reclaimer and pursuer there appeared to be a renewal of a submission made to, but rejected by, the Lord Ordinary that the relevant risk (in light of Lord Bridge's remarks concerning a "substantial risk") was the 9-10% risk of shoulder dystocia tout court, and not the much lower risk of a grave adverse outcome. Insofar as that submission was renewed before us, we also reject it. In his reference in Sidaway to a ten per cent risk Lord Bridge made clear that it was a substantial risk of grave adverse consequences which would qualify for consideration. Further, in the opinions delivered by the Judicial Committee of the House of Lords in Chester v Afshar their Lordships all referred to risk of serious injury, or adverse outcome, or seriously adverse results, or equivalent phrases. In our view, that must logically be so. What is of interest to the patient must be the outcome, adverse or otherwise, and not some possible complication for the medical practitioner which, if it arises, can be dealt with by ordinary procedures entailing no adverse consequences for the patient. As already mentioned, the undisputed evidence in the present case was that while in the case of diabetic women with a baby with a predicted birth weight of 4 kg or more there was a general 9-10% risk of shoulder dystocia, in the vast majority of those cases that problem was successfully addressed, without incident, by well recognised ordinary midwifery procedures; and in many cases the mother would not be aware of any problem having arisen.

[30] In these circumstances we have come to the view that the Lord Ordinary correctly concluded that, in the absence of specific inquiry as to risks, there was no failure by Dr McL in the advice which she gave and that, as a matter of professional responsibility, she was not required to spell out the very small risk of a grave outcome such as that which, unfortunately, materialised in the present case. The approach of Dr McL in this matter was amply endorsed by expert evidence, which the Lord Ordinary was entitled to, and did, accept of prevailing responsible professional practice.

The "expression of concerns" branch

[31] As we have already indicated (paragraph [14] supra), the second limb of the pursuer's "consent" case was founded on the relatively well‑known observation by Lord Bridge in Sidaway at page 898:

"I should perhaps add at this point, although the issue does not strictly arise in this appeal, that, when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must, in my opinion, be to answer both truthfully and as fully as the questioner requires".

In the submission of counsel for the pursuer, this legal duty to give full and honest answers to specific questioning arose independently of, and might go beyond, a doctor's undoubted duty to advise his patient of any substantial risks of an adverse outcome. Unlike the latter, however, the duty as identified by Lord Bridge was one which arose by operation of law, and was not be to be measured against any yardstick of medical practice or opinion.

[32] In her evidence at the proof, the pursuer's position was that from an early stage of her pregnancy, and certainly after becoming aware (at the 28‑week stage) that her baby's weight was above average, she had repeatedly asked Dr McL what risks might be inherent in vaginal delivery and in any other option. She was extremely anxious that, as a small, diabetic, first‑time mother with an increasingly large baby, she might not be able to deliver vaginally. But despite, as she said, voicing these concerns and asking Dr McL about the attendant risks on numerous occasions, she never received a satisfactory answer, nor did her mother who, for this very reason, had accompanied her to the antenatal clinic at 34 weeks. Since her mother was a GP, the pursuer explained, Dr McL might perhaps have been more willing to talk to her regarding potential risks.

[33] Unfortunately from the pursuer's standpoint, the Lord Ordinary did not believe her account of her having repeatedly questioned Dr McL as to the risks associated with vaginal delivery of a large baby. As he explained at paragraphs [238]-[263] of his opinion, and under reference to the detailed reasons listed at paragraphs [240]-[251] and [255]-[262], the Lord Ordinary concluded that the pursuer's evidence in this area disclosed a pattern of overstatement and exaggeration, and that under the influence of hindsight "...history was being rewritten". At paragraph [251], the Lord Ordinary also recorded that he disbelieved the pursuer's allegation that, after the event, Dr McL had apologised to her and said something to the effect of "...What you thought would happen has happened". Before us these conclusions by the Lord Ordinary were accepted as not being open to challenge on the pursuer's behalf. In the end we understood senior counsel to accept that the Lord Ordinary had been entitled to form an adverse view of the pursuer's credibility and reliability on these aspects of her case, and that accordingly Lord Bridge's observation in Sidaway regarding a doctor's legal duty to answer specific questions from a patient as to risks was not directly in point.

[34] As against that, however, the pursuer's concerns regarding the size of her baby and her ability to deliver vaginally were well known to Dr McL as the treating consultant. In the course of her own evidence, and with particular reference to her note at the 36-week clinic (production 6/29, p.101) to the effect that the pursuer was "...worried about size of baby", Dr McL had acknowledged this in terms. In these circumstances, it was said, the voicing of such concerns was essentially no different from the asking of specific questions directed to relevant risks. The pursuer's concerns here were sufficiently clear and sufficiently focused as to be equivalent to direct questions; they should therefore have triggered a full discussion of the risks associated with vaginal delivery. In law, "expression of concerns" and "specific questions" merged into one another; both involved the communication of a request for information; and the duty identified by Lord Bridge in Sidaway therefore arose in either case. On that basis, it was argued, the Lord Ordinary had misdirected himself at paragraph [263] of his opinion. No issue of credibility or reliability arose with respect to the pursuer's acknowledged concerns; and Dr McL had thereby come under a legal duty to respond fully and honestly as to the nature and extent of identifiable risks including inter alia cephalopelvic disproportion and shoulder dystocia. Only by doing so could she have put the pursuer into a position to exercise an informed choice, and in that event it was clear that the pursuer would have opted for the alternative of a caesarean section.

[35] In our opinion, and as the defenders submitted in resisting the reclaiming motion, there are significant difficulties with this approach. In the first place, it seems to us that on a fair reading of the Lord Ordinary's opinion his rejection of the pursuer's credibility and reliability related not only to her claim of specific questioning on the subject of risk but also to any implied equivalent of that. Whether the pursuer's complaint was of having repeatedly "asked questions" or of having repeatedly "voiced concerns" to Dr McL, the Lord Ordinary's decision is clear: he simply did not accept that the pursuer had effectively triggered a legal duty on Dr McL to embark on a detailed enumeration of potential risks. In the Lord Ordinary's view, at paragraph [244], the rejected evidence went "...well beyond some expression of concern about difficulty in giving birth to S as averred on Record". In a similar vein, at paragraph [263], he observed that there was "...a material difference between expressing concern and specifically raising the question of risks". To the Lord Ordinary, on this basis, there was nothing said by the pursuer which, as a matter of law, called for a full and honest "answer" detailing the potential risks associated with vaginal delivery. On the contrary, the pursuer's general anxieties and concerns were held insufficient to bring into play the specific duty adverted to in the observation by Lord Bridge in Sidaway which is in question.

[36] Despite the skill and persistence with which the pursuer's contentions were advanced, we are unable to hold that the Lord Ordinary was other than well founded in approaching this matter as he did. As it seems to us, the harbouring or communication of general anxieties or concerns, in a manner which does not clearly call for the full and honest disclosure of factual information in reply, falls short of qualifying under Lord Bridge's observation. A patient's expression of generalised anxiety in advance of surgery or other medical procedure may appear to warrant only reassurance in reply, and in the absence of specific questioning or its equivalent we would regard it as very difficult to define the limits of any supposed duty to "answer" on the part of the treating doctor. Much will depend, in an individual case, on the precise tone and terms of the relevant communications between the patient and the medical practitioner. As senior counsel for the defenders maintained, "context is all", and while concerns may conceivably be raised in such a way as to call for a specific factual response there will often be no need to go beyond general reassurance and a reminder of current plans. As we read his opinion, the Lord Ordinary correctly recognised this distinction, holding that, on the evidence, the pursuer's general anxieties and concerns fell into the latter and not the former category.

[37] Whatever may be the proper ambit of the legal duty identified by Lord Bridge in the observation in question which he made in Sidaway, we have come to the view that this aspect of the pursuer's appeal must fail on evidential grounds. In finding Dr McL to be a credible and reliable witness in this area, at paragraphs [247] and [258] in particular, the Lord Ordinary essentially accepted (i) that the pursuer's anxieties and concerns had not been clearly articulated prior to the 36-week clinic (at which point Dr McL made a relevant note in the records), and (ii) that, as actually voiced, they were of a general nature only regarding the size of her baby and her own capacity to achieve a successful delivery. Conversely, the Lord Ordinary was left with no impression of anxieties and concerns having been communicated in such a manner as to call for a detailed analysis of all the ways in which a vaginal delivery might go wrong. A failed delivery was not, in other words, under discussion. As it appeared to Dr McL, the pursuer simply needed reassurance that she would be able to manage a vaginal delivery, notwithstanding the size of her baby, failing which she was well aware that an elective caesarean section could be undertaken instead. All of the communications relied on were, of course, taking place at the antenatal stage in advance of the pursuer's admission to hospital for induction of labour. At that point it was highly unlikely that anything more than a provisional plan was in contemplation. In the event both Dr McL, and later her experienced registrar Dr I, responded to the pursuer's anxieties and concerns by reassuring her that she should indeed be able to cope with a vaginal delivery, and that the alternative of caesarean section remained open if any unforeseen difficulty were to be encountered. In all the circumstances we are not persuaded that, in the ante‑natal period, Dr McL was under any duty to go further than that.

[38] We would add that, setting aside, in light of the Lord Ordinary's findings, the pursuer's claims to have repeatedly, and without success, questioned Dr McL on the subject of risks, it is far from clear how or in what tone or terms the pursuer's general anxieties and concerns were communicated. At several points during her evidence she made reference to her own subjective thoughts, anxieties and lack of understanding, but at no stage did she go into detail regarding any communications with Dr McL which differed from the repeated questioning which she said she had made of Dr McL, but on which the Lord Ordinary was not prepared to accept her testimony. It is true that, at one point (volume 1, page 50), she mentioned having gone over concerns to the effect that the baby's head might be "scraped", or that she herself would end up having multiple stitches, but according to her this was towards the end of her labour and not in the antenatal period at all. In that antenatal period, as she put it earlier in her evidence in chief (volume 1, pages 21-2), she had merely "assumed" that such things might happen. On any view, such concerns would appear to have envisaged a successful, albeit difficult, delivery, as opposed to a scenario in which vaginal delivery might fail altogether.

[39] In cross-examination of Dr McL (volume 6, page 28), senior counsel for the pursuer suggested that the concern expressed by the pursuer might have been "...that the baby was going to be stuck". But it does not appear to us that the pursuer herself made any such claim when she gave her evidence. Furthermore, we are unable to accept senior counsel's submission before us to the effect that his suggestion had met with a positive response from Dr McL. On the contrary, on a fair reading of this passage of evidence, it seems to us that Dr McL began by denying that anything of that sort was ever said, and then went on to recall the quite different, and much more general, concern regarding the baby's size which the pursuer had actually expressed.

[40] Against that background, it is our view unsurprising that Dr McL (and in turn Dr I) reacted to the pursuer's anxieties and concerns by offering reassurance coupled with a reminder that only a provisional plan need be formed at that stage. Vaginal delivery would be attempted in the first instance, but, as the pursuer already knew, the alternative of a caesarean section remained open should any undue difficulty arise. In their evidence the defenders' experts, Doctors O (volume 9, pages 25‑6) and M (volume 11, pages/24‑5 and 28-30) expressed clear support for the course which Dr McL had taken, describing it as entirely normal and appropriate in the circumstances. It is also to be noted that the pursuer's expert Dr S (volume 3, page112) likewise indicated that he would go along with such a response.

[41] In advancing this branch of the argument for the pursuer, her counsel encountered the real difficulty, to which we have already adverted, of defining the scope of any "answer" required under Lord Bridge's formulation where only generalised anxieties or concerns were in issue. It is one thing to say that specific questioning will call for a full and truthful answer, since the scope of the doctor's duty will be evident from the question or questions posed. But the same cannot in our view be said of general anxieties and concerns which, of themselves, set no obvious parameters for a required response. In such a case there may be no plausible stopping‑point short of a legal duty to explain all possible risks to all patients who express general anxieties or concerns. And the problem there, as discussed in the preceding section of this opinion, is that a treating doctor is ordinarily under no duty to go into every possible risk or complication which might attend surgical or other procedures which are in prospect. Too much in the way of information or warnings may only serve to confuse or alarm the patient, and it is therefore very much a question for the experienced practitioner to decide, in accordance with normal and proper practice, where the line should be drawn in a given case. The point was clearly made by Lord Templeman in Sidaway (at page 904), by Lord Woolf in Pearce (at paragraph [23]) and again by Lord Hope in Chester (at paragraph 53). The point may be exemplified in the circumstance of the present case in that, if the pursuer was sufficiently anxious that a further ultrasound scan at 38 weeks was judged by Dr McL to be better avoided, it would seem incongruous to hold Dr McL nevertheless to have been under a legal duty to cause potentially greater alarm by discussing all the ways in which a vaginal delivery might go wrong. As Dr McL herself observed (volume 5, page 53), any patient about to undergo surgery who expressed general anxiety about anaesthetics would normally require reassurance rather than an explicit confirmation of the risk of death. To our mind, the pursuer's argument on this branch amounts to saying that, as a matter of law, neither reassurance, nor even deferment of a final decision, can qualify as available options for the treating doctor once a patient evinces any generalised anxiety or concern. In the absence of clear authority requiring us to affirm such a seemingly extravagant proposition, we are not persuaded that we should endorse it.

[42] For all of these reasons, we are unable to accept that this aspect of the pursuer's "consent" case is soundly based, or that the Lord Ordinary fell into any error of law or of fact in rejecting it.

Causation relative to the consent issue

[43] Since in our opinion the Lord Ordinary was entitled to conclude that Dr McL was not in breach of any duty in respect of advice tendered ante-natally, issues of causation do not properly arise. However, since such issues were raised in argument before the Lord Ordinary and before us, it is appropriate that we express briefly our views on them.

[44] As the Lord Ordinary narrates in paragraph [265] of his opinion, the evidence given by the pursuer as to what she would have done if advised of the risk of grave consequences arising should shoulder dystocia occur (which, as the Lord Ordinary observes, was "very small indeed"), was brief. The Lord Ordinary sets it out thus:

"If you had been told there was a risk of shoulder dystocia, what would your reaction have been? - I think I would have wanted her to explain to me what that meant and what the possible risks of the outcomes could be, and if it was a significant risk to me, as it was, I would have asked her to perform a caesarean section.

Now, during the, the time that you spent in, in hospital, up until the time [the baby] was delivered, if at any stage you had been offered a caesarean section, what would your attitude have been? - I would have bit her hand off for it."

[45] The Lord Ordinary then went on to examine the evidence in more detail, those answers having been given by the pursuer with the benefit of hindsight. In light of a number of factors, the Lord Ordinary concluded that he could not accept the pursuer's evidence that if told about the risks in shoulder dystocia she would have had a caesarean section. On the contrary, he concluded that the pursuer would nevertheless have proceeded to attempt vaginal delivery. The factors to which the Lord Ordinary had regard are set out in paragraph [267]:

"I believe that in these circumstances I have to look at the matter in a little more depth and see whether there are any factors that can be said either to negate or support the position that the pursuer has expressed in her evidence.

The factors that point against her opting for a caesarean section even had she known of the risks of shoulder dystocia are:

1. The minimal risk of an adverse outcome from shoulder dystocia.

2. The risks of a caesarean section which would have been explained to her as part of the overall picture.

3. Dr [McL] would have remained of the view that she should proceed to try to deliver vaginally and would have continued to put that view to her.

4. Her position that she was not arrogant enough to demand a caesarean section, from which it must be taken that she would have had full regard to the whole views as expressed by [Dr McL] (page 24 of her transcript).

I regard these factors as powerful evidence pointing towards a conclusion that had she been aware of the risks of shoulder dystocia she would nevertheless have proceeded to attempt vaginal delivery. I am unable to identify any factors which would point towards her not adopting that course. I accordingly do not accept her evidence that she would have had a caesarean section and she accordingly fails the "But For" test".

[46] Counsel for the pursuer criticised the Lord Ordinary's conclusion principally upon the basis that the Lord Ordinary had not referred to and hence had not taken account of certain of the evidence given by Dr McL in volume 5, pages 52 - 54 of the transcript. That evidence, it was submitted, was evidence to the effect that the pursuer would in fact have requested and been given a caesarean section. The passage in question reads:

"And so you make a distinction, do you, between the patient who may have a greater degree of knowledge about a particular procedure and is more inquisitive than the patient who doesn't ask such questions? - No, it's ... you are responding to a circumstance you are in at the time. Nowadays we are asked far more detail about things that we discuss, people bring internet papers with them to discuss with you where we go into risk that on occasions you rarely know exist yourself, but, you know, we will go into risks that we wouldn't commonly have discussed because they are so rare. And, of course, if somebody is coming to you with that information you do discuss it with them. What is ... would still be common practice would be to discuss in detail risks that are considered to be significant over a particular threshold, I mean, there is a risk for every procedure, every minor operative procedure that includes death, but we don't say to patients that there is a potential that you could die under this anaesthetic, the chance is one in a million. I mean, there is a kind of cut off ...

Indeed. - ...and the threshold for that has changed over the years and it is lower now than it was 10 years ago.

Yes. - But if I am asked specifically about a risk I will discuss that in detail with a patient, but since I felt the risk of her baby having a significant enough shoulder dystocia to cause even a nerve palsy or severe hypoxic damage to the baby was low I didn't raise it with her, and had I raised it with her then yes, she would have no doubt requested a caesarean section, as would any diabetic today." [patent transcription errors corrected]

[47] It is to be observed that this passage occurs in the context of a discussion with the witness of professional practice in the matter of advising of the risks of shoulder dystocia, rather than a focussed consideration of the likely attitude and response of the pursuer as a particular individual. It is clear elsewhere that Dr McL would still have sought to persuade the pursuer to attempt vaginal delivery, and only if the pursuer could not be so persuaded would Dr McL have arranged for a caesarean section. The Lord Ordinary, who of course saw and heard the witnesses, concluded that the pursuer would have had regard to and followed Dr McL's views and her advice. In these circumstances we do not consider that the Lord Ordinary omitted to take into account material and significant evidence. We are also mindful of what was said by Lord Simonds in Thomas v Thomas 1947 SC (HL) 45 at page 61:-

"Your Lordships were therefore invited to find that the learned judge had forgotten or ignored this evidence and to hold that his judgment was thereby vitiated. I believe this to be fundamentally unsound criticism. The trial judge has come to certain conclusions of fact; your Lordships are entitled and bound, unless there is compelling reason to the contrary, to assume that he has taken the whole of the evidence into his consideration".

We therefore do not consider the submission for the pursuer in this respect to be well-founded.

[48] However, senior counsel for the pursuer went on to advance a wider reaching argument to the effect that here the court should not apply normal, "but for" rules or principles of causation. In his submission the response which the patient would have given to the advice about risks, had the patient received that advice, was not to be treated as determinative. It was sufficient that a risk of grave consequences, of which risk there was ex hypothesi a duty to advise, had in fact materialised. That provided a sufficient causal link. The basis for this submission was the decision of the House of Lords in Chester v Afshar.

[49] The facts of Chester v Afshar may be summarised as follows. The claimant underwent elective surgery on her spine. There was a small risk that the procedure in question, albeit carried out with all due care, might result in cauda equina syndrome. The defendant, a consultant neurosurgeon, did not advise the claimant of that small risk. The judge found that in failing so to advise the claimant the surgeon was negligent. The operation was carried out and the plaintiff developed cauda equina syndrome. There was no negligence in the performance of the surgical procedure itself. The issue in the appeal was one of causation. The findings made at first instance in so far as bearing on causation were to the effect that, the surgical procedure being an elective one, had the claimant been advised of the risk in question, she would have sought advice on alternatives; the operation would not have taken place when it did; although the claimant might have agreed to surgery at some future date, if she underwent the same operation it would have had the same small risk of cauda equine syndrome.

[50] The majority, (Lord Steyn, Lord Hope and Lord Walker - Lord Bingham and Lord Hoffmann dissenting) took the view that on policy grounds the normal principles of causation should undergo a narrow modification to provide the claimant with a remedy. The matter was put thus by Lord Hope:

"[86] I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy - simply to agree or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately.

[87] To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case".

Lord Steyn at paragraphs 24 and 25 of his speech said this:

"24. Standing back from the detailed arguments, I have come to the conclusion that, as a result of the surgeon's failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles.

25. On a broader basis I am glad to have arrived at the conclusion that the claimant is entitled in law to succeed. This result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover, the decision announced by the House today reflects the reasonable expectations of the public in contemporary society".

Towards the end of paragraph 101 of his speech, Lord Walker observed:

"I agree with Lord Steyn and Lord Hope that such a claimant ought not to be without a remedy, even if it involves some extension of existing principle, as in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32... Otherwise the surgeon's important duty would in many cases be drained of its content".

[51] On our reading of the speeches of the majority it is not apparent that they intended that the modification of causation principles which they were prepared to make in Miss Chester's case should apply generally to all cases in which a medical practitioner has failed in a duty to advise of risks. In the course of paragraph 85 of his speech, Lord Hope dealt with the matter thus:

"I would prefer to approach the issue which has arisen here as raising an issue of legal policy which a judge must decide. It is whether, in the unusual circumstances of this case, justice requires the normal approach to causation to be modified". [emphasis added]

In, and after, paragraph 63 of his speech Lord Hope went on to refer without disapproval to a number of cases in which the claimant failed because the court found on the evidence that the claimant would probably have agreed to the particular operation in question, even if advised of the risks which it entailed. Further, Lord Steyn observes at paragraph 19:

"Fourthly, it is a distinctive feature of the present case that but for the surgeon's negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion was very small. It could therefore be said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned".

At paragraph 96 of his speech Lord Walker drew attention to the difficulty which the trial judge found in saying what would have resulted from the claimant's receiving further advice and the improbability of her receiving future surgery identical in circumstances (including nature of surgery, procedure and surgeon) to the surgical operation which she actually underwent. It may also be noted that the decision of the High Court of Australia in Chappel v Hart (1998) 195 CLR 232, upon which some reliance was placed, also involved a patient contemplating elective surgery who, if she had been properly advised of the risks, would have sought a second opinion and, if later choosing to undergo surgery, would have undergone it with a more experienced surgeon. In these circumstances it respectfully appears to us that the situation in which the majority of their Lordships in Chester v Afshar considered that liability should exist was one where a warning of risk would have resulted in the patient seeking further advice elsewhere, with resultant uncertainty as to whether the patient would have undergone at a future date an identical procedure in which the same risk might or might not have materialised. Their Lordships' concern was to supply a causal link in the rare case in which the patient's reaction could not be established in evidence.

[52] But in our view the present case differs materially from that situation. One is not in the area of truly elective surgery. The birth of a baby cannot simply be put off or postponed, like a planned procedure. Not surprisingly, therefore, it was never part of the pursuer's case that she would have deferred matters and taken further advice, the outcome of which might be uncertain. Her position as set out in the pleadings (article 8 of the condescendence) was that had she "been properly advised she would have undergone delivery by caesarean section". In the event, the Lord Ordinary concluded on the evidence, contrary to that averment, that even if advised of the relevant risks the pursuer would yet have been persuaded by Dr McL to attempt vaginal delivery in the first instance. There is thus a specific, positive finding in fact as to the pursuer's response were she to have been advised of the risks flowing from shoulder dystocia. It is not submitted that the Lord Ordinary was not entitled to make that finding. Accordingly we think that counsel for the respondents were correct in submitting that the present case is simply not within the ambit of what their Lordships had in mind in Chester v Afshar.

[53] In these circumstances we incline to the view that had it been necessary for us to decide the matter we would have reached the view that the Lord Ordinary was also correct in holding that causation had not been established.

[54] We turn now to consider the other broad branch of the reclaiming motion, namely the issues respecting the management of labour.

Management of labour

[55] The management of labour issue turned upon the evidence of Dr McL and expert witnesses adduced by both parties concerning the interpretation of the CTG trace, the question being whether omission to take a foetal blood sample or to perform a caesarean section amounted to professional negligence on the part of Dr McL. As noted above (at paragraphs [9] and [10]), although the pursuer's case before the Lord Ordinary relied upon alleged failures by Dr McL to intervene - by taking a foetal blood sample or proceeding to a caesarean section - at any of the four particular points in the course of labour mentioned in paragraph [9], counsel for the reclaimer departed from the case based upon such failures on any of the first three specified occasions and restricted the management of labour issue to the final stage, namely the examination by Dr McL of the pursuer and the CTG trace at approximately 1600 hrs. The criticism of the Lord Ordinary's decision on this aspect of the pursuer's case was twofold.

[56] First, it was maintained that the Lord Ordinary had erred in failing to conclude that Dr McL had a duty to intervene in view of her apparent acceptance in the course of her evidence that at some time prior to1550 to 1555 hrs the CTG trace was "pathological" with areas of reduced variability, a tachycardia and persistent late decelerations.

[57] The second criticism was to the effect that the Lord Ordinary erred in attaching weight to the evidence of the expert witnesses adduced in support of the defenders when that evidence was based on their own interpretation of the CTG trace, as opposed to Dr McL's interpretation of the trace.

[58] As regards the first of these criticisms, it is correct that at one point in her evidence in chief Dr McL acknowledged that the CTG trace from about 1444 hrs until about 1515 hrs included a series of persistent late decelerations associated with reduced variability, and that in the terminology of certain guidelines published in 2001, but which had existed in draft for some time prior to that date, this was a "pathological" trace (volume 4, pages 198 - 9; volume 5, pages 1-2). In his opinion the Lord Ordinary recorded that acknowledgment (paragraph [213] and again in paragraph [214]). However, we agree with the Lord Ordinary that this admission has to be considered in the context of the whole evidence of the witness.

[59] While guidelines are undoubtedly relevant in the exercise of clinical judgement, they are not determinative of the course of action to be followed by the clinician. Guidelines are merely indications of possible courses of action in particular circumstances and, as Dr McL observed, they are not set in tablets of stone (volume 5, page 148). Within the 2001 document itself, under the heading "Aim of the Guidelines", the following statements appear:

"Clinical guidelines have been defined as 'systematically developed statements which assist clinicians and patients in making decisions about appropriate treatment for specific conditions'. The parameters of practice included in this document were arrived at after careful consideration of the available evidence and should be considered as guidelines only"

and

"Clinicians involved in intrapartum care must use their professional knowledge and judgement when applying the recommendations to the management of individual women". (volume 5, pages 148/149).

Thus, even if the 2001 guidelines had been in force at the relevant date, Dr McL was obliged to use her professional skill and judgement in determining the appropriate course of action to take at approximately 1600 hrs following her examination of the pursuer.

[60] Dr McL acknowledged that CTG traces were important for the ongoing management of labour. She explained that it was her practice to review the trace from its commencement when she first examined a patient; and thereafter to review it from the point of her last review up to the time of her subsequent examination of the patient (volume 4, pages 20/21). Consonant with the views expressed by the expert witnesses tendered on behalf of the defenders, Dr McL made clear that what really counted was the whole pattern of the trace in conjunction with clinical findings on examination of the patient. The significance of any given feature of the trace had to be judged in that wider context. An apparent cause for concern, taken in isolation, would call for the situation to be monitored, but if normality were then to be restored over a sufficient period the clinician could be reassured. In particular, where a trace disclosed that long-term variability of the foetal heart rate was being maintained, that variability showed that the baby was reactively coping with the demands of labour and that there was no significant hypoxia present in the baby. As Dr McL explained, "generally, when you have good variability, the chances of finding significant acidosis are remote." (volume 4, pages 191 and 192).

[61] Those views, it may be noted, were in sharp conflict with those of the pursuer's expert witnesses who, in essence, maintained that precipitate action should be taken as soon as any apparently untoward feature appeared on the trace; further monitoring of the situation was not an option. It was no doubt on this approach that the allegations of negligence (by omission to take that action) in the management of the labour at the earlier points in time (approximately 0810 hrs, 1230 hrs and 1345 hrs respectively) were also based. As already mentioned, those allegations - evidently overtaken by subsequent events - were departed from at the outset of the reclaiming motion.

[62] Although between 1440 hrs and 1540 hrs the CTG trace suggested some reduction in variability alongside signs of tachycardia with a baseline rate of 170, Dr McL explained that she was reassured when she examined the pursuer and the trace at about 1550 hrs because variability had clearly improved and the baseline rate had returned to 160. If the signs of tachycardia had persisted, she considered that it would have been reasonable to take a foetal blood sample but in light of the improvement in the CTG trace she took the view that it was not necessary to take that step. Nor did she consider the patient's condition to be truly pathological, in the sense of requiring immediate delivery of the baby by caesarean section without a foetal blood sample. Neither course of action was required (volume 4, page 209). Apart from the improvement in the CTG trace, Dr McL also derived support for her conclusion that neither a foetal blood sample nor a caesarean section was necessary from the results of her clinical examination of the pursuer at about 1550 hrs. At that time, as the trace confirmed, the baby responded appropriately to foetal scalp stimulation, which indicated that the baby had "an intact nervous pathway to the cortex and therefore the baby [did] not have a significant degree of hypoxia at that stage" (volume 5, page 5).

[63] The results of her examination of the pursuer at that time thus reassured Dr McL that the baby was coping with labour and that there was, in her clinical judgement, no requirement for taking a foetal blood sample or for proceeding to a caesarean section at that stage. No criticism is advanced respecting any of the steps taken by Dr McL after that examination at around 1600 hrs. In particular, no criticism is made of the decision at 1730 hrs to attempt a forceps delivery or of the efforts or procedures undertaken to cope with the shoulder dystocia or with the consequent 12 minute occlusion of the umbilical cord which led to the hypoxia productive of the child's grave disabilities.

[64] The question for the court's determination is thus whether, in the exercise of her clinical judgement, Dr McL's decision at around 1600 hrs to continue with the labour and not to proceed to a caesarean section at that time, nor to take a foetal blood sample, was a course of action which no professional person of ordinary skill would have taken, if acting with ordinary care (Hunter v Hanley; Bolam v Friern Hospital Management Committee). At paragraphs [214] and [215] of his opinion the Lord Ordinary summarised his reasons for concluding that the pursuer had failed to establish that there was a breach of duty of care by Dr McL in not intervening at 1600 hrs. He observed:

"[214] ......She [Dr McL] undoubtedly did regard [the maintenance of variability] as a very important factor. However, she also placed considerable reliance on the response of the foetus to scalp stimulation at the point in which she was making her decision at about 15.50. She gave reasons for her attaching particular importance to that finding at that time. Her evidence on this feature has to be seen in the context of her evidence and the evidence of the experts for the defenders that such a response is a particular sign of foetal health...In addition her view when her whole evidence was had regard to was that the late decelerations had not been sustained for a sufficient period to become clinically significant. Finally she also factored into her consideration her view that the decelerations were not deep, again in her view pointing away from the decelerations being significant clinically. She also took account of a recovery in variability and a settling back of the foetal heart rate to 160 in the period immediately prior to her examination at or about 15.50. She then applied her professional knowledge and judgement to that picture. When looked at in the context of the whole CTG trace and her understanding of the progressive nature of hypoxia she decided immediate intervention was not required. I do not see how in those circumstances the evidence of Dr McL supports the pursuer's position. I accept that at one point Dr McL accepts that part of this section is pathological. However, this answer has to be looked in the context of her whole evidence. The doctor at this point accepts no more than this: that on the criteria set down in the guidelines, this could be a pathological trace at this point. It, however, requires to be noted that she went on to say in cross examination that these are merely guidelines, i.e. they are recommendations. She stressed that in considering whether to deliver a baby by caesarean section one did not just tick boxes, rather one applied clinical judgement to the trace which one saw. It was her position that she did this in relation to this section of the trace and found reassuring factors within the trace which for reasons she explained, outweighed the non-reassuring factors she had also identified.

[215] In any event I have accepted that the evidence of Drs O and M supports Dr McL's decision not to intervene (although their interpretation of the CTG trace is not entirely on all fours with Dr McL) and their evidence is, as I have said, capable of withstanding logical analysis and therefore in those circumstances, it cannot be established that there was a failure in the care at this point by Dr McL not intervening."

We respectfully agree with these observations and reject the submission that the Lord Ordinary erred in his treatment of this aspect of the case. In our view the Lord Ordinary was entitled, on the evidence, to reach the conclusion at which he arrived and in so doing to prefer the measured approach of the experts tendered by the defenders, which was supportive of Dr McL, rather than that of the professional witnesses adduced by the pursuer. We therefore consider that the first criticism of the Lord Ordinary advanced in this broad chapter of the case is not well-founded.

[65] The second criticism of the Lord Ordinary - which at times seemed to be advanced by counsel for the pursuer with greater enthusiasm - was that the Lord Ordinary had erred in taking any account of the evidence of the defenders' expert witnesses insofar as these witnesses relied upon their own interpretation of the CTG trace. It was submitted that they ought to have accepted, and proceeded only upon, Dr McL's acceptance in her evidence that at some points prior to 1540 hrs the trace was "pathological" in terms of the 2001 guidelines. This submission proceeds firstly upon the proposition that Dr McL's interpretation of the CTG trace must be taken as conclusive and binding upon experts who are asked to analyse the trace and give their opinion about the clinical decisions taken at the relevant time. Secondly, it also proceeds on the view that the guidelines dictate an obligatory course were any feature appearing on the CGT trace to be interpreted as "pathological". We regard both of these propositions as ill-founded. In our view the proper approach is to determine whether in the whole circumstances the clinical decision taken is defensible as being within the range of decisions reasonably available to an ordinarily competent obstetrician at the material time.

[66] For that purpose, we consider that an expert witness in this area must be free independently to review any CTG trace, along with all other available clinical evidence, in order to reach a conclusion whether the decision not to intervene, either by taking a foetal blood sample or by proceeding to a caesarean section, was a reasonable one for an obstetrician exercising ordinary care for his or her patient. In our view there is no basis for constraining expert evidence in the manner suggested on the pursuer's behalf. The proposition entails that if the treating clinician had reached a plainly wrong interpretation of the CTG trace - or any equivalent diagnostic tool in other fields - the expert witness would nonetheless be constrained to an expression of opinion based on that erroneous interpretation. By the same token, we can see no reason why such an expert should not freely question, or disagree with, a suggested interpretation put to the treating clinician in the course of the clinician's evidence. In the present case, notwithstanding the 2001 guidelines, both Drs O and M respectively concluded that they themselves would not have taken a foetal blood sample or proceeded to a caesarean section at 1600 hrs. The Lord Ordinary accepted their evidence, holding, in that context, that the interpretation offered by both of those experts of the particular features of the CTG trace in issue could not be described as irrational, illogical or unreasonable. In our view the Lord Ordinary was well entitled to take the course of accepting the evidence of those experts as to how they interpreted the trace, and how they would have responded to its indications, supplemented by the clinical findings at the examination of the pursuer at the relevant point of time in the labour. We must therefore conclude that the second criticism of the Lord Ordinary advanced in this limb of the reclaiming motion is also ill-founded.

Decision

[67] It follows from the results of our examination of the arguments advanced in support of the reclaiming motion that the reclaiming motion must be refused. We feel it appropriate to express particular gratitude to counsel for the care and diligence with which they prepared and advanced their submissions. It is also appropriate to mention that each member of the bench contributed substantially to this opinion by framing an initial draft on a chapter or chapters of the opinion.