Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> LT, RECLAIMING MOTION LT (AS GUARDIAN OF RC) AGAINST LOTHIAN NHS HEALTH BOARD [2019] ScotCS CSIH_20 (03 April 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_20.html
Cite as: [2019] ScotCS CSIH_20

[New search] [Printable PDF version] [Help]

Page 1 ⇓

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2019] CSIH 20

A306/13

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

in the reclaiming motion

LT (as guardian of RC)

Pursuer and Reclaimer

against

LOTHIAN NHS HEALTH BOARD

Defenders and Respondents

Pursuer and reclaimer: Milligan QC, Bell; Digby Brown LLP

Defenders and respondents: Ferguson QC, Doherty QC; NHS Central Legal Office

3 April 2019

Introduction

[1] The pursuer is the mother and guardian of RC, a son who was born by spontaneous

vaginal delivery in the defenders’ hospital on a date in 2005. The time of birth was recorded

as 2327 hours on that date. The pursuer avers that at about the age of three years RC was

Page 2 ⇓

diagnosed as suffering from severe cerebral palsy and that he has very serious associated

disabilities. She further avers that RC’s condition is the result of a period of significant

hypoxia-ischaemia and consequent brain damage which occurred immediately before his

birth and, in particular, in the period of about 45 minutes before his birth. The pursuer seeks

reparation from the defenders on behalf of RC for his injury and damage on the ground of

alleged fault and negligence for which the defenders are liable.

[2] The reclaiming motion, which is at the instance of the pursuer, is against the

interlocutor of the Lord Ordinary (Lady Wolffe), dated 3 April 2018, repelling the pleas-in-

law for the pursuer, sustaining the second and third pleas-in-law for the defenders and

assoilzing the defenders from the conclusions of the summons.

[3] The interlocutor of 3 April 2018 was pronounced after a three-week proof restricted

to the question of negligence; questions of causation and quantification of damages having

been left over for later determination if necessary.

The scope of the reclaiming motion

[4] In large part the pursuer’s case is concerned with the interpretation of the results of

the electronic foetal monitoring (“EFM”) of the pursuer using a cardiotocograph machine

during the pursuer’s labour and, in particular during the last two hours of that labour (after

2126 hours). This period was when labour was in its second stage, in other words the cervix

was fully dilated and the foetus was being pushed through the vaginal canal.

[5] As the Lord Ordinary records at para [7] of her opinion and as is very familiar, EFM

of a woman in labour using a cardiotocograph machine is common. It is carried out by

affixing sensors to the mother which are intended to record, among other things, the uterine

activity (ie contractions) of the mother and the foetal heart rate (“FHR”). These recordings

Page 3 ⇓

are printed out in real time in a continuous manner onto a scroll of paper, which may be

referred as a foetal trace (“a trace”) or a cardiotocograph (“CTG”). A CTG records the level

of FHR at particular points of time and the pattern of its increase (“acceleration”) and

decrease in speed (“deceleration”) from the mean level (“the baseline”) over a period of time

in parallel with uterine contractions. Decelerations may be “early” or “late”. Early

decelerations are repetitive uniform decelerations whose onset is early in a contraction and

which return to the baseline at the end of the contraction. Late decelerations are repetitive

uniform decelerations with onset mid to late in a contraction with a nadir more than

20 seconds after the peak of the contraction and whose end is after completion of the

contraction. Comparison of FHR at different points of time indicates the extent to which it

fluctuates (“variability”). Assessment of these readings allows suitably qualified clinicians

to come to a view as to the condition of the foetus during labour and, in particular, whether

it may be suffering from hypoxia. Such an assessment is an exercise in interpretation in the

sense that suitably qualified clinicians may come to different conclusions from a

consideration of the same CTG. In the present case the expert witnesses led for the pursuer

interpreted the relevant portion of the CTG differently from the way in which it was

interpreted by the expert witness led for the defenders. A particular point of difference was

where the baseline should be located. As will be apparent, the location of the baseline

determines whether an excursion or change in FHR falls to be regarded as an acceleration or

a deceleration.

[6] Again as is recorded by the Lord Ordinary (paras [9] to [17] of her opinion), at the

relevant time guidance on the use and interpretation of cardiotocography in intrapartum

foetal surveillance had been provided by the Royal College of Obstetricians and

Gynaecologists by way of Evidence-based Clinical Guideline Number 8 of 2001, The Use of

Page 4 ⇓

Electronic Foetal Monitoring (“the Guidelines”). The Guidelines incorporate a clinical practice

algorithm or flow chart, with recommended actions depending on the results of auscultation

or CTG during labour (“the Algorithm”). Excerpts of the Guidelines and the Algorithm

were lodged in process by the defenders and extensive use was made of them by parties in

leading evidence and by the Lord Ordinary in evaluating that evidence. They were taken to

be an indicator of standard obstetric practice at the time of RC’s birth.

[7] The Guidelines provided definitions and descriptions of a number of individual

features of FHR (table 2.1). At paragraph 2.5 and table 2.3 they set out four FHR features:

(1) baseline FHR expressed in beats per minute (bpm); (2) variability of FHR (expressed in

bpm); (3) decelerations; and (4) accelerations. In relation to each of these features the table

sets out parameters which enable the feature to be categorised as “reassuring”, “non-

reassuring” or “abnormal”. In the same paragraph, table 2.2 provides for the categorisation

of FHR traces. A CTG where all of the table 2.3 features are reassuring is categorised as

“normal”; a CTG one of whose features fall into the non-reassuring category is categorised

as “suspicious”; and a CTG where two or more of the features fall into the non-reassuring

category or one of the features falls into the abnormal category is categorised as

“pathological”.

[8] When considering the pleadings and the evidence of witnesses as recorded in the

transcript and the submissions made by counsel, where words are used which are defined in

the Guidelines it is to be assumed that the words have been used in the sense of the

definitions. Thus, for example, “normal”, “suspicious” and “pathological” are all to be

regarded as terms of art, the definitions of which are as set out in the preceding paragraph of

this opinion.

Page 5 ⇓

[9] As pled, the pursuer’s case alleges fault and negligence on the part of both the

midwife who attended the pursuer from 1915 hours on the day of RC’s birth and the

obstetrical registrar who was in attendance at about 2230. During the course of the proof

before the Lord Ordinary the case against the midwife was abandoned as were some of the

grounds of fault directed against the registrar. At the point of submissions to the

Lord Ordinary the pursuer relied on three grounds of fault on the part of the registrar

following her assessment of the CGT trace at 2230, each of which arose from her failure to

take action other than allowing the pursuer’s labour to proceed with a view to spontaneous

vaginal delivery. The Lord Ordinary referred to these three grounds of fault as “the CTG

interpretation case”, “the failure to expedite delivery case” and “the consent case”.

[10] The Lord Ordinary records at para [219]of her opinion that when counsel addressed

her he explained that while the CTG interpretation case and the failure to expedite delivery

case depended on a finding that the CTG trace was pathological as at 2230 that was not so

with the consent case. It required merely that the trace was “unusual” (para [219] of the

opinion). “Unusual” is not a term of art, in the sense that it is defined in the Guidelines.

[11] The Lord Ordinary found none of the three cases insisted in against the registrar to

have been established. The pursuer acquiesces in the Lord Ordinary’s decision as far as the

CTG interpretation and failure to expedite delivery cases are concerned. However, before

this court she maintains that the Lord Ordinary erred in fact and law in holding that the

registrar was entitled to proceed with labour without obtaining the pursuer’s informed

consent after about 2230 on the relevant date; what the Lord Ordinary described as the

consent case. The Lord Ordinary discusses that case at paras [317] to [330] of her opinion.

Page 6 ⇓

The consent case

[12] For what is now the sole ground of alleged fault maintained against the defenders

the pursuer relies on the law as it is found to be in Montgomery v Lanarkshire Health Board

2015 SC (UKSC) 63. In a judgment with which all members of the UK Supreme Court

agreed, Lords Kerr and Reed stated the relevant principles in relation to the risks of injury

involved in medical treatment at para [87] as follows:

“An adult person of sound mind is entitled to decide which, if any, of the available

forms of treatment to undergo, and her consent must be obtained before treatment

interfering with her bodily integrity is undertaken. The doctor is therefore under a

duty to take reasonable care to ensure that the patient is aware of any material risks

involved in any recommended treatment, and of any reasonable alternative or

variant treatments. 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.”

It was not disputed by counsel that this is the authoritative statement of the applicable law.

No point is taken by the parties to this case in relation to “interfering with …bodily

integrity”. It is accepted that the same principles apply where the relevant treatment option

is not to intervene or not further to intervene but rather to allow a previously determined

management plan to continue notwithstanding the fact that further information has

emerged which bears on the risks and benefits of the previously decided upon treatment.

[13] What is impugned here is a failure by the registrar to obtain the informed consent of

the pursuer before continuing with the then current management plan which was to proceed

to spontaneous vaginal delivery notwithstanding what should have been apparent to the

registrar on consideration of the CTG trace at 2230.

[14] The registrar gave evidence of what would appear to have been a brief attendance

on the pursuer at about 2230 (she had also provided an affidavit which the Lord Ordinary

Page 7 ⇓

quotes from at para [59] of her opinion). The Lord Ordinary describes that evidence as

being, at times, confused and difficult to follow. However, after the registrar’s evidence was

concluded, parties to an extent superseded it by agreeing by way of a fourth joint minute

that: (1) following assessment at about 2230 the registrar did not form a management plan to

the effect that if the delivery was not achieved within 10 to 15 minutes, the midwife should

call her back and (2) did not inform the midwife to call her back if delivery was not achieved

within 10-15 minutes. As the registrar had maintained was the case when giving evidence,

the Lord Ordinary held that the registrar was likely to have classified the CTG trace as

normal when assessing it at 2230 and that the care provided to the pursuer thereafter

proceeded on that basis (opinion para [259]).

[15] The pursuer’s consent case is premised on the propositions that the registrar was

wrong to classify the CTG trace as normal, that she should have classified it as suspicious

(the pursuer’s note of argument also describes it as “unusual and indeterminate”) and that

in classifying it as normal the registrar was negligent. The pursuer indeed avers that the

trace was pathological. However, evidence of that proposition having been rejected by the

Lord Ordinary, the submission for the pursuer has become that even if the trace is classified

as merely suspicious, a registrar of ordinary competence exercising reasonable care would

have appreciated that it demonstrated a small but nevertheless material risk of ongoing

foetal compromise due to hypoxia-ischaemia which might result in brain damage in the

event of labour being allowed to proceed to spontaneous vaginal delivery and that that fact

gave rise to a duty on the registrar to (1) advise the pursuer of the risk demonstrated by the

CTG trace, (2) advise the pursuer of the reasonable alternative options of assisted delivery

by forceps or ventouse suction or facilitation by episiotomy, and (3) offer the pursuer the

choice as between continuing towards spontaneous delivery and one of the available

Page 8 ⇓

alternatives. In failing to provide the pursuer with that advice and offer these alternatives it

is submitted that the registrar failed in her duty of care towards the pursuer and RC which

was identified in Montgomery at para [87] (“the Montgomery duty”).

The Lord Ordinary’s opinion

[16] As we have foreshadowed, at proof the pursuer’s principal cases (the CTG

interpretation case and the failure to expedite delivery case) were not to the effect that the

trace was and should have been interpreted by the registrar at 2230 as suspicious and that

that should then have been discussed with the pursuer. Rather, they were to the effect that

the trace was and should have been interpreted by the registrar at 2230 as pathological and

that delivery should have been immediately expedited. That latter proposition was based

on what had been the evidence of all three of the pursuer’s experts, summarised in the first

two sentences of paragraph 36 of the pursuer’s proposed findings-in-fact: “By this time

(2230) the baseline had risen to 170-180 beats per minute with late decelerations to 130 beats

per minute. Such a trace was pathological and delivery should have been expedited”

(Lord Ordinary’s opinion para [222]).

[17] The Lord Ordinary rejected the evidence of the pursuer’s experts and their

interpretation of the CTG as demonstrating a baseline tachycardia with decelerations for the

reasons she gives, preferring that of the defenders’ expert, Professor Murphy, which was

that it had been open to the registrar to interpret the CTG as one with a normal baseline

FHR, with marked accelerations with each contraction and ongoing variability (Lord

Ordinary’s opinion paras [310], [314] and [315]).

[18] Having found that the pursuer’s principal cases failed because the CTG was not

pathological, the Lord Ordinary turns to consider the consent case. She records that counsel

Page 9 ⇓

for the pursuer presented it on the basis that an ordinarily competent registrar exercising

reasonable skill and care could not rule out “the material risk that the baby was in danger”.

She notes that for the Montgomery duty to obtain, there must be a relevant risk and that the

identification of such a risk was a matter falling within the expertise of the medical

profession. In the Lord Ordinary’s opinion this gave rise to difficulties for the pursuer’s

case. First, the Lord Ordinary had found that the registrar was likely to have classified the

CTG as normal and that, in the opinion of Professor Murphy, classifying the CGT as no

more than suspicious was an available, non-negligent interpretation. Given the rejection of

the pathological interpretation, the pursuer had to have some basis in the evidence about the

risk posed (if any) in the event of a suspicious/non-reassuring CTG before it could be said

that the duty to obtain consent arose. A second difficulty for the pursuer was that none of

her expert witnesses had addressed the issue of consent in their reports or in their oral

evidence. They had not expressed any view as to what the registrar should have said to the

pursuer, much less what options she should have discussed. Nor had they expressed any

view as to the nature or degree of risk (if any) that could be said to be posed by a CTG

categorised as normal or suspicious or unusual. What had been said about material risk by

counsel for the pursuer had been no more than assertion; there was no evidence to support

the argument that there was an increased risk of brain damage when a trace was normal,

suspicious or unusual. Such evidence as there was militated against such a finding.

Without evidence of risk, the duty founded upon by the pursuer simply did not arise. The

only expert who had been asked about patient consent had been Professor Murphy. Her

evidence about this had come just after her concession that the CTG might have been

classified as (no more than) suspicious, rather than normal. Even in that context, her

position had been that, given that the current management plan was for watchful waiting, it

Page 10 ⇓

sufficed for the registrar to introduce herself to the pursuer, to assure her that she was

making good progress and that the registrar would be called back if there were any

concerns. There was accordingly no breach of the Montgomery duty and the pursuer’s

consent case accordingly failed.

The grounds of appeal

[19] The pursuer submits the Lord Ordinary erred in fact and law in rejecting the consent

case. In ground of appeal 2 the pursuer particularises the Lord Ordinary’s error as:

(a) Finding that the CTG trace could, reasonably and without negligence, be

interpreted as normal, rather than suspicious, at about 2230.

(b) Failing to find that the trace as at about 2230 was both suspicious and

unusual.

risk.

(d) Failing to hold that a suspicious trace posed a material risk.

(e) Holding that there was no obligation on the registrar, in the face of a

suspicious and unusual trace, to obtain the pursuer’s consent to proceed with labour

without discussing the alternative of an expedited delivery.

(f) Failing to find that there was an obligation on the registrar, when faced with

a suspicious trace and a baby that could easily be delivered with forceps, to inform

the pursuer of the options available to her.

(g) Holding that consent obtained at the outset of labour continued even when

there was a change in the status of the trace.

Page 11 ⇓

Submissions of parties

Pursuer and reclaimer

[20] Montgomery v Lanarkshire Health Board represented a fundamental shift from a

paternalistic approach to the management of labour to a patient-driven approach where the

decisions are taken by the mother rather than the doctor: Montgomery generally and at

para [81] in particular; Webster v Burton Hospitals NHS Foundation Trust [2017] Med LR 113 at

paras [31] and [35]. While the existence of relevant risk is a matter for medical evidence, the

evaluation of whether a risk is material and whether the available alternatives are

reasonable in the circumstance is a matter for the courts and not medical experts:

Montgomery at para [83]; Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ

1307 at paras [33] to [35]. A woman giving birth was entitled to receive the information

necessary to enable her to take a proper part in the decision-making relating to her care.

Going into labour was not to be regarded as a roller-coaster ride on a pre-determined track.

Rather it was a journey which, depending on changing circumstances, might be taken on

one of a number of available paths.

[21] At the time that the registrar was examining the reclaimer at around 2230 the CTG

trace should have been interpreted as being suspicious, on the basis of the evidence of the

defenders’ expert, Professor Murphy (Mr Milligan QC, who appeared on behalf of the

pursuer, accepted that as the Lord Ordinary had rejected the evidence of the pursuer’s

experts and preferred that of Professor Murphy, a decision that was not challenged, and

further accepted that Professor Murphy’s was accordingly the only available evidence upon

which he could rely in relation to interpretation of the trace). Mr Milligan submitted that the

Lord Ordinary had incorrectly held (at paras [259], [310] and [325] of her opinion) that the

trace was and could reasonably be interpreted as normal. There was no evidence to support

Page 12 ⇓

that conclusion. Furthermore, the Lord Ordinary’s finding was irreconcilable with other of

her findings at para [194] of her opinion. That the trace was normal was not the

interpretation that Professor Murphy would have arrived at. Professor Murphy considered

the trace to have been suspicious at 2230.

[22] Because of these errors as to what were the facts, the Lord Ordinary had failed to

address what the registrar should have done in terms of advising the pursuer as to

(1) material risks; and (2) reasonable alternative treatments in the face of a suspicious as

opposed to a normal trace. As a consequence of the Lord Ordinary’s error the issue was at

large for the appellate court to determine as had been the position in Webster. On

consideration of the evidence this court should find that there had been a breach of the

Montgomery duty and the reclaiming motion should accordingly be granted.

[23] A suspicious trace indicates a small risk of foetal compromise (including cerebral

palsy) due to hypoxia-ischaemia. Moreover, according to Professor Murphy, the possibility

of foetal compromise in the second stage of labour is heightened if a midwife has called for a

second opinion. In light of this the question became whether the risk was “material”. This

question is for the court. In making its assessment the court must take account of the odds

of the risk materialising; the nature of the risks; the effect its occurrence would have on the

life of the patient; the importance to the patient of the benefits sought to be achieved by the

treatment; the alternatives available; and the risks associated with them: Montgomery at

para [89] and Duce at para [35].

[24] In terms of the Algorithm, the advice, in the face of a suspicious trace, was to

“Ensure that the mother is informed of concerns and included in management plan”. This

was an indication of the risk of foetal compromise to which a suspicious trace pointed. The

Lord Ordinary failed to address this point in her opinion.

Page 13 ⇓

[25] The Lord Ordinary held that the uncontested evidence was that the alternative

methods of delivery, by forceps, ventouse or episiotomy, posed a low risk (opinion at

para [2]). The availability of these low risk alternatives was key to the question of

materiality of risk to the foetus. The correct approach was that taken by Lord Brailsford in

KR v North Lanarkshire [2016] CSOH 133 at [133]. The pursuer should have been advised of

these alternatives and should have been included in the discussion as to whether to continue

with the current birth management plan. That this is what should have happened was

accepted by the registrar and is confirmed by what appears in the Algorithm. Despite this,

the pursuer was not advised of the available alternatives to unassisted vaginal delivery, was

not afforded the opportunity to decide the course of the second stage of her labour, and was

not included in the management plan contrary to the terms of the Algorithm.

[26] When assessing materiality, although the risk of hypoxia-induced damage was small,

the potential consequences of it were devastating in contrast to the alternatives which were

virtually risk free in comparison, and which would have expedited labour and reduced the

suffering of the reclaimer and RC. In the Montgomery sense the risk of foetal compromise

was plainly material in that a reasonable person in the pursuer’s position would have

attached significance to it. The alternative methods were not options available to the

pursuer at the time that she originally consented to spontaneous delivery. As and when

they became available they should have been made available to her.

[27] The registrar’s failure to advise of the alternative options was a breach of the duty of

reasonable care. Professor Murphy’s evidence that it was only necessary to obtain consent

when intervention was being considered and not when what was in issue was simply

progressing with labour, was contrary to the ethos of Montgomery and Webster.

Page 14 ⇓

Defenders and respondents

[28] At the outset of his argument, Mr Ferguson QC, who appeared for the defenders and

respondents, submitted that the short answer to the reclaiming motion was that even if the

Lord Ordinary had been wrong in finding that the registrar had not been negligent in

finding the CTG trace to have been normal at 2230 (which was not conceded) the

Lord Ordinary simply could not have found that there was a duty incumbent on the

registrar to provide information to the pursuer with a view to allowing her to decide on

whether or not she should continue with her labour unassisted by the suggested alternative

means of delivery in the absence of evidence that a suspicious or unusual trace indicated a

risk of hypoxia-ischaemia and consequent brain damage. There had been no evidence of

such a risk. Neither had it been put to the registrar that she knew of such a risk nor was

there evidence that she ought to have known of such a risk. The fundamental error on the

part of counsel for the pursuer was that he started with the proposition that the risk of brain

damage could not be ruled out. This, as the Lord Ordinary had observed at para [318] of her

opinion, was to invert the test for the existence of the relevant duty.

[29] Turning to the propositions set out in the pursuer’s note of argument, Mr Ferguson

responded as follows:

(1) It was accepted that the law on the duty to obtain consent was as set out in

Montgomery at paras [87] and [82] to [83].

(2) The pursuer was wrong to assert that there was no evidence to support the

Lord Ordinary’s conclusion that the CTG trace could reasonably be interpreted as

normal at about 2230. The pursuer was also incorrect to say that the Lord Ordinary’s

finding was irreconcilable with her earlier findings at paras [194] to [195] of her

opinion. The evidence of Professor Murphy required to be read as a whole.

Page 15 ⇓

(3) It was not accepted that a trace which was properly categorised as suspicious

indicated a risk (small or otherwise) of foetal compromise due to hypoxia-ischaemia.

This had not been explored in the evidence. It was to be borne in mind that whether

a state of foetal compromise exists is not a binary question. Foetal compromise is of

the nature of a spectrum of conditions. It cannot necessarily be equated with

hypoxia.

(4) Contrary to what was suggested by pursuer’s counsel, the availability of

alternative treatments (here alternative methods of delivery) did not inform the

question as to whether there was a risk such as to trigger the Montgomery duty.

(5) It was not correct to say that the pursuer had not previously been involved in

the management plan (she had) and it was not correct to say that the registrar had

accepted that the pursuer should have been advised of alternative methods of

delivery at 2230 (she had not).

(6) The assertion that the registrar accepted that the pursuer had not been

included in the management plan was also incorrect (the Lord Ordinary had also

been incorrect to say at para [319] of her opinion that it was agreed by joint minute

that the registrar never discussed the management plan with the pursuer). The

registrar’s evidence was that, in accordance with her usual practice, the pursuer was

included when formulating the management plan. The terms of the fourth joint

minute were not that the reclaimer was not included in the management plan, but

rather that following the 22.30 assessment the registrar “… did not form a

management plan to the effect that if delivery was not achieved within 10-15 minutes

the midwife should call her back”.

Page 16 ⇓

[30] The defenders’ response to the reclaiming motion could be encapsulated in five

submissions:

(1) The Lord Ordinary did not err in finding that the CTG at 2230 could be

interpreted as normal or as no more than suspicious; the evidence entitled her to

reach that conclusion. It had not been demonstrated that she was plainly and

obviously wrong or indeed simply wrong about that matter.

(2) It was axiomatic that a risk of brain damage must have, in the circumstances,

been a known risk in order for the duty to inform to arise. The existence and

magnitude of that risk were matters for medical evidence. In this case there had

been no such evidence and therefore the Lord Ordinary had no basis to find that the

Montgomery duty had been incumbent on the registrar.

(3) It had not been established that the registrar knew or ought to have known of

a risk of brain damage where a trace was interpreted as being no more than

suspicious.

(4) If the trace was suspicious the legal duty to advise the mother of the risk of

brain damage could only arise if it was known that a suspicious trace indicated a

higher risk of brain damage than that which was otherwise consequent on the second

stage of labour.

(5) In the absence of a known material risk there was no legal duty to advise of

“concerns” (whatever that might mean) or alternative means of delivery or new

options for delivery or to obtain the pursuer’s agreement to continue with the

existing management plan.

[31] The extent of the relevant duty and the considerations on which it is based are

explained in Montgomery. It was a duty to take reasonable care to ensure that the patient is

Page 17 ⇓

aware of any material risks involved in any recommended treatment and of any reasonable

alternative or variant treatments. The duty to inform of a material risk presupposes that

obstetricians were or should have been aware of the relevant risk: Duce at paras [29], [30],

[33] , [42] to [43]. Thus, the first hurdle to be surmounted for there to be a duty involves a

two-fold test: (1) is there a risk and (2) did the relevant clinician know or ought to have

known of the risk. To determine whether each part of the test had been met required

evidence. The opinion in KR v Lanarkshire Health Board at paras [125], [130], [132] and [133]

illustrates circumstances where the duty did and did not arise. In the present case there had

been no expert evidence as to what was the risk associated with an “unusual” CTG or one

classified as “suspicious” or described as “indeterminate”. Thus no duty to inform the

pursuer of a risk of foetal compromise which would result in brain damage could arise. As

in Taylor v Dailly Health Centre and others [2018] CSOH 91, in the absence of an identified risk

that was or should have been known to an obstetrician, the registrar’s decision as to the

management of the labour fell within the exercise of professional skill and judgement. No

issue had arisen that required discussion of the possible alternatives with the reclaimer.

[32] The legal duty to discuss risks did not extend to “concerns” (the word found in the

Algorithm). A concern was not necessarily a risk. Similarly, the duty identified in

Montgomery did not arise merely because additional options as to the means of delivery

emerged in the course of labour. The duty arises because of the existence or the emergence

of risk; not otherwise.

[33] The Lord Ordinary had accepted the evidence of Professor Murphy that the

classification of the CTG as normal, or at least as no more than suspicious was an available

non-negligent interpretation (opinion at paras [315] and [325]). Given the totality of

Professor Murphy’s evidence the Lord Ordinary had been entitled to do so. Her conclusion

Page 18 ⇓

was not irreconcilable with her other findings. Her finding was not one that this court

should displace. In the absence of an identifiable error the Inner House can only interfere

with the findings in fact of the Lord Ordinary if it is satisfied that the decision at first

instance cannot reasonably be explained or justified and so is plainly wrong : Henderson v

Foxworth Investments Ltd 2014 SC(UKSC) 203 at [66] to [67]; McGraddie v McGraddie 2014 SC

(UKSC) 12; Royal Bank of Scotland PLC v Carlyle 2015 SC (UKSC) 93; AW v Greater Glasgow

Health Board [2017] CSIH 58.

[34] The pursuer’s consent case depends on the proposition that a suspicious CTG trace

gives rise to a small (but material) risk of there being foetal hypoxia. Variants upon that

proposition had been asserted by the pursuer’s counsel: that a suspicious trace takes a

clinician out of the comfort zone; that a suspicious and unusual trace increases the risk of

harm to the brain; and that it was untenable to suggest that a clinician would not be aware

of the risk of brain damage in the circumstances of a suspicious trace. None of these

propositions were supported by any evidence. The Lord Ordinary had addressed this at

paras [326] and [327] of her opinion. She had been correct to conclude that there was no

evidence to support the pursuer’s argument that there was an increased risk of foetal

compromise which would result in brain damage when a CTG was normal, suspicious or

unusual. Mr Milligan had conceded before the Lord Ordinary that a suspicious CTG did not

require delivery to be expedited; rather, conservative measures should be used. The

knowledge that a risk of injury exists is a matter for the medical profession and thus was a

matter on which expert evidence was required. Neither the Guidelines nor the Algorithm

suggested that a CTG classified as normal or suspicious gave rise to a risk of foetal

compromise which would result in brain damage.

Page 19 ⇓

[35] The Lord Ordinary had correctly concluded that such evidence as there was

militated against a finding that a suspicious CTG posed a material risk of foetal compromise

which would result in brain damage. In particular the Algorithm provided that if a CTG

remained suspicious there should be continued observation of FHR but nothing more. It did

not mandate intervention for a suspicious CTG. The pursuer sought to rely upon the terms

of the Algorithm which stated that where a CTG was classified as suspicious using the

criteria in the Guidelines, steps were to be taken to “Ensure that mother is informed of

concerns and included in management plan.” It was important to note that the wording

used in the Algorithm differed from the legal duty in Montgomery at [87]. There is no legal

duty to inform the reclaimer of “concerns”; the duty is to inform of known material risks

and no doubt for that reason the pursuer’s pleadings rely on risk rather than concerns. By

equating concerns with risks the pursuer sought to give the word “concerns” a status that it

did not have or at least one for which there was no support for in the expert evidence. The

meaning of “concerns” was not explored in evidence. It was very dangerous for a lawyer to

interpret a document such as the Guidelines without hearing from a witness in one of the

professions to which it is directed. That had not happened in the present case. For all that is

known, ensuring that “mother is informed of concerns and included in management plan”,

which the Algorithm recommends as an action in the event of a suspicious trace, might

mean advising the mother that there was one non-reassuring feature on the trace the

significance of which is not known but which would be kept an eye on.

[36] The reason that the CTG trace was unusual was because it showed a pattern of

persistent accelerations during the second stage of labour. That took the pursuer no further

forward. Professor Murphy had given evidence that the standard resources used

throughout the United Kingdom, even to the present day, do not flag up anywhere that

Page 20 ⇓

persistent accelerations during the second stage of labour might be a worrying

phenomenon.

[37] In conclusion, it was submitted the Lord Ordinary was entitled to find the trace at

2230 normal or at worse suspicious; but even if that is not accepted it does not matter

because there was no evidence of risk in the light of a suspicious trace or that the registrar

knew or ought to have known of risk. What is relevant is risk not concerns. One does not

get to the issue of materiality unless the existence of a risk is established and knowledge or

deemed knowledge of it is brought home against the relevant grade of doctor. The

Algorithm does not fill the gap. Lack of evidence is the determinative factor. The

reclaiming motion should accordingly be refused.

Decision

The issue: did the Montgomery duty arise?

[38] The issue in this reclaiming motion is whether the pursuer has established, on the

basis of the evidence led at proof, a breach of the duty, identified in Montgomery, to ensure

that the patient has given properly informed consent to treatment. If breach was

established, determining its consequences is a matter for another day, but the reclaiming

motion succeeds and must be granted. If it was not established, the pursuer accepts that she

has no other claim. That being so, the reclaiming motion against the Lord Ordinary’s grant

of absolvitor must therefore be refused.

[39] For there to be breach of a duty it must of course first be established that, in the

circumstances of the case, the duty in fact existed. It is on that question that the defenders

take their stance in responding to the reclaiming motion.

Page 21 ⇓

[40] Medical treatment is uncertain and may involve the risk of more or less adverse

outcomes depending upon whether a particular course of action is or is not taken or, where

more than one course of action is available, which of these is chosen. The judgment of the

Supreme Court in Montgomery proceeds upon the basis that an adult patient understands

that and, moreover, that a patient is entitled, as a matter of law, to decide whether or not to

incur a risk: Montgomery at paras [81] and [82]. In other words, a patient is entitled to choose

what happens, choice being exercised by giving or not giving consent to a particular course

of treatment. For the choice and consequential consent to be real, in other words to have

been arrived at after consideration of all the relevant circumstances, the patient will require

information and, to the extent that that is different, advice from her doctor on the potential

benefits of a good outcome and the potential risks of an adverse outcome. It is part of the

doctor’s duty of care to provide that advice. However, just as the decision is for the patient

so it is for the patient to determine the weight to be given to the medical advice when

coming to that decision.

[41] The UK Supreme Court articulates the duty on the doctor which is the counterpart of

the right of the patient in a passage from para [87] in Montgomery which we have already

quoted but will repeat:

“The doctor is therefore under a duty to take reasonable care to ensure that the

patient is aware of any material risks involved in any recommended treatment, and

of any reasonable alternative or variant treatments. 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.”

As we have indicated, this is a duty which arises and indeed only arises when the patient is

required to make a decision or choice which involves incurring risk. We would suppose

Page 22 ⇓

almost every sort of medical treatment, in the sense of an intervention of some kind, to

involve some degree of risk. Equally, not treating may involve risk. The Montgomery duty

will therefore arise in very many clinical interactions between doctor and patient and

certainly at the beginning of any course of treatment. However, its logical underpinning

depends on there being a decision to be made in circumstances where there is a risk of injury

to the patient associated with one or other of the available options. If there is no risk or no

risk additional to what has previously been discussed and taken into account in consultation

with the patient, then there is no duty because there is no further decision which the patient

requires to make.

[42] As Mr Ferguson submitted under reference to Duce at paras [33], [42] and [43], in

this context there are two steps to be taken in identifying whether there is a risk or

additional risk such as to trigger the Montgomery duty. The first step is determining

whether, as a matter of contemporary medical knowledge, there was a risk. The second step

is determining whether the relevant clinician (here the registrar) knew or ought to have

known of that risk. Whereas the materiality of the risk is something which the court may

ultimately have to determine, the existence of the risk and whether the relevant clinician

ought to have known about it are exclusively medical matters and therefore require to be

established by expert medical evidence.

[43] In this case there is no criticism made of the initial plan for the management of the

pursuer’s labour, which was to allow it to proceed to spontaneous vaginal delivery. We

suppose that to be the preferred course for most mothers notwithstanding the fact, as

Professor Murphy said in evidence, that there is a possibility for compromise for every

foetus in the second stage of labour (MS 748). That the Montgomery duty was fulfilled in

respect of the initial management plan is not of course an end to the matter. A clinical

Page 23 ⇓

picture can change and that is certainly so during labour. Such a change may be associated

with additional or enhanced risks for the mother or the baby. That is what the pursuer avers

happened here: that at 2126 the CTG trace pattern changed rapidly and abruptly and that

this indicated the onset of significant foetal compromise, possibly due to intermittent cord

compression. The pursuer’s principal case was that at that point the CTG had become

pathological, in other words so strongly indicative of a risk of hypoxic-ischaemic brain

damage occurring that good practice mandated immediate expedited delivery. The pursuer

now accepts that that case failed; the Lord Ordinary found that the pursuer’s experts were

simply wrong in their proposed interpretation of the trace. However, the pursuer maintains

that the altered appearance of the CTG presented sufficient of a risk (because if not

pathological it was at least suspicious) to require that risk to have been discussed with the

pursuer and her consent obtained to the continuation of an unassisted labour, if that is what

was decided on. This is the consent case.

Was the Lord Ordinary wrong to find that the registrar had not been negligent?

[44] The first hurdle facing the consent case is the Lord Ordinary’s finding that as a

matter of fact the most likely interpretation reached by the registrar when she was called on

to consider the trace at about 2230 was that it was normal, and the Lord Ordinary’s further

finding that at the relevant time a registrar of ordinary skill and competence was entitled to

classify the trace as normal or as no more than suspicious (opinion paras [309] and [310]).

Such a trace does not indicate a risk over and above the inevitable risks associated with the

second stage of pregnancy. On that view of matters the Montgomery duty did not arise and

therefore there was no basis upon which the consent case could succeed.

Page 24 ⇓

[45] On behalf of the pursuer Mr Milligan sought to surmount the first hurdle by

displacing the Lord Ordinary’s findings and substituting for them a finding that the only

non-negligent reading of the CTG trace at 2230 was that it was at least suspicious.

[46] Mr Ferguson’s preliminary response to this attack on the findings of the

Lord Ordinary was to remind us, under reference to AW v Greater Glasgow Health Board at

paras [38] to [58] about the limitations on an appellate court’s ability to review the findings

of a court of first instance on matters of fact.

[47] We do not intend to innovate upon or add to what appears in AW v Greater Glasgow

Health Board. We merely observe that, while it is not a matter for the application of dogmatic

or hard-and-fast rules, the extent to which a first instance decision is open to review by the

Inner House will depend on the nature of the decision and the nature of the material upon

which the decision was based. Here Mr Milligan proposes that we should review the

decision of the Lord Ordinary that an interpretation of the CTG trace as normal at 2230 was

not negligent. With a view to persuading us that the Lord Ordinary was wrong in the

conclusion that she reached Mr Milligan proposes that we should look at the evidence of

only one witness, the defenders’ expert, Professor Murphy. The proposition that he seeks to

make out is that the Lord Ordinary, who accepted Professor Murphy as a reliable witness,

failed to understand her evidence. We would see the exercise which Mr Milligan invites us

to embark on as a legitimate one for an appellate court. If, on the relevant evidence, the

Lord Ordinary can be shown to have been wrong, there is no reason why this court cannot

so decide, with the consequences that follow from that. However, in coming to a view as to

whether the Lord Ordinary has been shown to have been wrong, as was said by the court in

AW at para [48], an appellate court should not come to a different conclusion from the trial

judge on the basis of the printed evidence unless it is satisfied that any advantage enjoyed

Page 25 ⇓

by the trial judge through having seen and heard the witnesses could not be sufficient to

explain or justify his or her conclusion.

[48] We turn then to Professor Murphy’s evidence.

[49] As we have already explained, the pursuer’s principal case was based on the

proposition, spoken to by her three experts, that, as a matter of fact, as at 2230 the baseline

of the CTG had risen to 170-180 beats per minute with late decelerations to 130 beats per

minute. The Guidelines categorise a baseline of 170-180bpm as non-reassuring. They

categorise late decelerations as abnormal. In contrast, they categorise a baseline of 110-160,

the presence of variability and the absence of decelerations as all being reassuring features.

A CTG where all four features fall into the reassuring category is classified as normal. If one

of the features is non-reassuring but the others are reassuring then the CTG is suspicious. If

two or more features are non-reassuring or one is abnormal then the CTG is pathological.

The pursuer’s case was therefore that the trace was pathological. Professor Murphy’s

reading of the trace was very different. She states her position in her report of 25 March

2015 at para 5.5 as follows:

“A vaginal examination was performed shortly after 20.50 confirming cervical

dilatation of 7cm. There was a short sharp deceleration during the vaginal

examination followed by an acceleration, normal baseline heart rate of 125bpm, as

before, and good FHR variability. Between 21.00 and 21.20 the contractions continue

at a rate of 4-5 in 10. The baseline heart rate is 130-140bpm and there is good

variability. There are accelerations and no decelerations. There is a deceleration just

before 21.30, coinciding with a change in maternal position to the woman's right

hand side. The FHR recovers to 140bpm.”

At para 8.6 she describes this presentation as:

“The foetal heart rate was apparently normal right up until the moment of birth.

There was no loss of variability, no decelerations, no tachycardia and no

bradycardia.”

Page 26 ⇓

By the time of preparing her Supplementary Report of 15 February 2017 Professor Murphy

had had sight of the reports prepared by the pursuer’s experts, Drs Smith, Hanretty and

Walkinshaw. At page 24 of that report, at the end of a section considering the interpretation

to be placed on the CTG, she provides a summary which includes the following:

“In summary, it is my view that the CTG has an unusual appearance for the late first

and second stage of labour. The presence of accelerations with contractions in the

second stage of labour is uncommon. The baseline heart rate, however, is relatively

easy to define. The midwife paid close attention to the timing of the contractions and

accelerations. She questioned her own interpretation of the CTG and sought a

second opinion from the registrar who expressed no concerns and confirmed that the

vertex was visible. Having confirmed that the CTG was normal, reassuring or no

more than suspicious, the midwife continued to manage the patient in a standard

way for a nulliparous woman who was showing steady progress with pushing. …

Neither the midwife nor the registrar considered that this might be a very unusual

CTG pattern with a reversal of the usual features of hypoxia. This is not surprising

given that such a pattern is not highlighted in standard teaching materials or practice

guidelines, nor has it been recognised as such by most of the experts who have

expressed an opinion on this case.”

At para 5.3 in the section of her report reviewing the standard of care in the case, Professor

Murphy has this:

“5.3 Unfortunately in this case there was a very unusual but not entirely unknown

CTG pattern with a reverse of the usual features of hypoxia. Instead of a rising

baseline or tachycardia, late decelerations or bradycardia, and reduced or absent

variability, there was a CTG with a normal baseline heart rate, marked accelerations

with each contraction and ongoing normal variability. Any midwife or obstetrician

of ordinary skill and competence was entitled to interpret these features as normal,

reassuring or no more than suspicious …even experienced obstetricians struggle to

interpret this type of CTG in a consistent manner.”

When giving her evidence in chief Professor Murphy confirmed that she classified the trace

as normal (MS518). She was asked, if the evidence was that the registrar had interpreted the

trace as normal or reassuring, whether that was an interpretation that she would take issue

with. Her reply was that that interpretation was “entirely acceptable” (MS549). Later, she

was asked about her interpretation of the trace under reference to what had appeared in her

Page 27 ⇓

Supplementary Report and, in particular, at page 24 of that report. She explained that “the

difficult time period to interpret, 2210 and 2230” could either be interpreted as “normal or

indeterminate” (MS567). She confirmed what appeared at page 24 of the Supplementary

Report and that she was not critical of either the registrar or the midwife for failing to

identify (as very unusual) the reversal of the pattern of features which one would expect to

see with a foetus enduring hypoxia (MS571).

[50] In cross-examination Professor Murphy was asked whether the trace should have

been interpreted as suspicious. She replied that “I think it would be cautious to classify it as

suspicious” (MS665). She had no difficulty in defending the actions of the registrar (MS666).

It was put to her that the registrar at 2230 could not possibly have said with any reasonable

confidence that the trace was reassuring. Her response was that the registrar “could have

said, with reasonable confidence, that it is no more than suspicious, and that it requires

ongoing observation” (MS685). Professor Murphy accepted that if the registrar had

interpreted the trace as pathological she should “stay in the room and deliver by vacuum or

forceps” (MS687). It was then put to her that the registrar could not, with confidence, rule

out a pathological interpretation. Professor Murphy’s response was that the registrar had

ruled out a pathological interpretation with apparent confidence and that it was acceptable

for her to have done so (MS687).

[51] On behalf of the defenders, Mr Ferguson relied on these passages in Professor

Murphy’s reports and the transcript of her evidence as supporting the Lord Ordinary’s

findings at paras [310] and [325] of her opinion that a registrar of ordinary skill and

competence was entitled to classify the trace at 2230 as normal or no more than suspicious.

Mr Milligan, on the other hand, relied on what he submitted was the concession that he had

extracted from Professor Murphy towards the end of her cross-examination. The context

Page 28 ⇓

was questioning on the conclusion to Professor Murphy’s Supplementary Report which is in

these terms (at page 28 of report, MS305, in transcript MS739):

“[RC] is likely to have sustained significant cerebral injury in the peripartum period

that has resulted in his disabilities. It has been suggested by several experts that the

intrapartum CTG was unequivocally pathological in the final two hours of labour

and that delivery should have been expedited earlier. The cerebral damage has been

attributed to this time period. It is my opinion that the CTG was unusual but

technically the features entitled the midwife and obstetrician to interpret it as

normal, or no more than suspicious. There are likely to be some midwives and

obstetricians who would have been uncertain or concerned about the CTG, and in

such circumstances, had they made the decision to deliver by vacuum or forceps this

would be entirely justified. … Equally, there are likely to be obstetricians and

midwives who would have interpreted the CTG as no more than suspicious,

particularly where a second opinion confirmed the interpretation, and in such

circumstances, had they made the decision to aim for a spontaneous vaginal delivery

this would also be justified. I am not at all convinced that I would have taken the

interventionist route if interpreting this CTG as a junior registrar, and consider it

entirely possible that I may have opted for expectancy with the vertex visible near

the perineum. On that basis, I do not consider the care [the pursuer] received in

labour to be negligent ...”

In his role as cross-examiner, Mr Milligan put to Professor Murphy the part of the sentence

in her conclusion which reads “there are likely to be obstetricians and midwives who would

have interpreted the CTG as no more than suspicious”. He followed up with the

proposition that no one could be more confident than that; it was a suspicious trace.

Professor Murphy answered:

“Well the suspicious CTG would be fairly commonplace in the second stage of

labour. Very few CTGs have all three features, or indeed four features in the second

stage of labour. The majority of second stage CTGs are suspicious. You always,

virtually always, get an occasional variable deceleration or early decelerations,

they’re really common in the second stage CTG.” (MS742)

Mr Milligan pressed his point: “You couldn’t say it was better than suspicious, could you?”

Professor Murphy answered:

“Oh, I think they could’ve used the classification normal. Normal baseline, normal

variability, accelerations, no decelerations. So, for the, certainly the last hour, you

Page 29 ⇓

would … they would have been entitled to classify it as normal. … The previous

hour they would have been entitled to classify it as normal.” (MS743)

There then came what Mr Milligan submitted to us was the concession by Professor Murphy

upon which he founded. In response to his prompt: “… at 2230, somebody looking at the

trace 2230 …”, Professor Murphy said: “Suspicious”. Mr Milligan then completed his

question: “… should have classified it as suspicious”, to which Professor Murphy

responded: “Correct” (MS743).

[52] Mr Milligan pointed to another answer by Professor Murphy in which he submitted

she had repeated or reinforced her concession. In response to the question:

“… do you accept that … no ordinarily competent registrar acting with reasonable

skill and care could have interpreted this trace as reassuring at 2230 or thereby?”

Professor Murphy had replied:

“I would have expected them to interpret it as suspicious. Reassuring is a different

word. Suspicious, I would expect that interpretation.” (MS746)

That answer was not followed up; Mr Milligan moved on to another topic.

[53] There are a number of things to be said about what is to be made of this evidence,

taken as a whole. The first is that the person best placed to understand it was the

Lord Ordinary. She had heard all the oral evidence in the case and read the documentary

productions. She appears to us to have mastered the relevant technical material. She has

provided a very detailed analysis. She was therefore able to place particular passages of

evidence and particular answers within the context of the totality of what had been put

before her. Even if one was to take Professor Murphy’s evidence in isolation, the Lord

Ordinary not only had the opportunity of considering everything the professor had said and

had written in her reports, but she had had the experience of listening to her and observing

her in court. She had heard the professor’ explanations for her answers and had been able to

Page 30 ⇓

consider their internal logic. Moreover, the Lord Ordinary was able to observe Professor

Murphy’s demeanour as she answered questions. The word demeanour is often used to

refer to the various non-verbal clues which may assist a fact-finder in determining whether a

witness is to be believed or not, but the importance of the way in which a witness gives her

evidence goes beyond that. Communication of meaning, whether in court or otherwise, is

only partly achieved by the words used. Tone, emphasis, gesture and other aspects of body

language have a contribution to make. None of that is captured on the printed pages of a

transcript. In some cases that may not matter. The words used may be sufficiently

unequivocal to make the meaning that was intended to be conveyed quite clear. This is not

such a case, or at least it not such a case if the suggestion is that the meaning which

Professor Murphy intended to convey in two brief exchanges with counsel was that the only

non-negligent interpretation of the CTG trace was that it was suspicious.

[54] In her reports and in her oral evidence Professor Murphy clearly expressed her

opinion that, on the assumption that the registrar interpreted the trace as normal, she could

not be said to have been negligent. Professor Murphy gave her reasons for considering that

a trace which she would classify as suspicious might be classified as normal by the registrar

without that leading to the conclusion that the registrar had been negligent. This was an

unusual trace which had been difficult to interpret. Indeed, the pursuer’s experts had been

unable to do so successfully (as the Lord Ordinary accepted). Of the four features of a CTG

that are of particular importance, three (a baseline that was normal; normal variability; and

marked accelerations) were reassuring. Only one feature, the presence of some early

decelerations, was non-reassuring. However, the decelerations were only occasional and

decelerations are common in the second stage of labour. Moreover, as the Lord Ordinary

records at para [209] of her opinion, Professor Murphy had explained: “This is how one was

Page 31 ⇓

trained to behave. To eyeball it. If normal, it was ok. If not, one applied the features to have

a standard classification.” Thus, interpreting a trace is to an extent a matter of impression

depending on how the clinician perceives the pattern revealed by the CTG. Where the

pattern appears to be normal, a clinician may not go on to check on each of the four features.

[55] Given how categorical she had been in previous answers and the reasons she had

provided, if Professor Murphy had indeed intended to depart from her reasoned opinion

that the registrar was not negligent one might expect her to have given something by way of

an explanation. Mr Milligan did not suggest that this is what had happened. He had not

explored the matter. He relied on no more than the two exchanges which we have

reproduced above.

[56] When one turns to these exchanges, it is not clear to us just what Professor Murphy

is conceding, if indeed anything. The Lord Ordinary may have shared that view. In the first

exchange Mr Milligan puts to the professor that “somebody looking at the trace … should

have classified it as suspicious”. Now at this point there were, or may have been (the

question does not make it clear), at least two concepts in play. The first is what the trace in

fact shows. For present purposes, that is the same thing as the interpretation that Professor

Murphy would put on it. Because she identified occasional decelerations the professor

accepted that, in terms of the Guidelines, the trace fell to be classified as suspicious. In

responding “Correct” to the proposition that “somebody looking at the trace…should have

classified it as suspicious” Professor Murphy may have been saying no more than that: this

is how she would classify the trace. The second concept is whether a classification of the

trace as other than suspicious would be negligent. If that was the proposition Mr Milligan

intended to put to Professor Murphy, it cannot be said to have been put very clearly. In the

second exchange Mr Milligan did deploy the appropriate test for negligence by phrasing his

Page 32 ⇓

question as “do you accept that no ordinarily competent registrar acting with reasonable

skill and care could have interpreted this trace …” However, he rather confused the issue by

choosing as his next word “reassuring”. If he was intending to use “reassuring “ in a

technical sense, that is in the sense in which it is used in the Guidelines, then he misused it.

In terms of the Guidelines, a feature of a trace may be categorised as reassuring but a trace is

not categorised as reassuring; the categorisations of a trace are normal, suspicious or

pathological. This use or misuse of technical terms and the need to clarify how they should

be employed then became the focus of Professor Murphy’s reply: “I would have expected

them to interpret it as suspicious. Reassuring is a different word. Suspicious, I would

expect that interpretation.”

[57] Given the ambiguous nature of Professor Murphy’s responses in the two exchanges

founded on by Mr Milligan and her unambiguous answers to the questions to which

Mr Ferguson drew our attention, this court would be slow to construe her evidence as

supporting a finding that the registrar was negligent but, as is explained in AW v Greater

Glasgow Health Board, while an appellate court can interfere with the trial judge’s decisions

on fact for a number of reasons, it can only do so if it is satisfied that the trial judge, in his or

her role as fact-finder, has in some way got it wrong. Where some aspects of the evidence

point one way and others point another way, even if that evidence is that of a single witness,

it is open to a fact-finder to select what are the aspects which are to be given more or less

weight and where the evidence is of the nature of opinion what are the aspects which are

based on convincing reasoning and what are the aspects which lack such a foundation. Here

it was for the Lord Ordinary, as primary fact-finder, to assess the meaning and effect of

Professor Murphy’s evidence. We have not been satisfied, on the basis of the passages of the

Page 33 ⇓

professor’s evidence which have been brought to our attention, that the Lord Ordinary got

that exercise wrong.

[58] We would add this. Mr Milligan talked of Professor Murphy having made a

concession, in the sense of an alteration of her position in response to his questioning. In

judging whether that that had indeed happened, it was open to the Lord Ordinary to have

regard to what if any, in the opinion of the witness, were the consequences of the apparent

alteration. If there are no consequences, in other words if it does not really matter, a witness

might accede to a proposition more readily than if she sees the alteration in position as being

of importance. Here, and this is to anticipate what we have to say later in this opinion, for

Professor Murphy whether the trace was classified as normal or as suspicious was of very

limited clinical significance. In either case the proper clinical response was close monitoring

but not intervention (MS664 to 665, 743). Thus, even if no registrar of ordinary competence

exercising reasonable care would have classified the trace as normal (which is not how the

Lord Ordinary understood the evidence) the fact that the registrar in the present case did

classify it as normal did not lead to a negligent act or omission.

[59] Had the Lord Ordinary understood Professor Murphy to have made a concession on

the issue as to whether the registrar should be regarded as having been negligent in

interpreting the trace as normal, that would not of course have been an end to the matter.

Important as her evidence may be, an expert does not bind the party who calls her. Here the

onus was on the pursuer to establish that the registrar had been negligent. Before so finding

the Lord Ordinary would have had to accept that there was a reasoned basis for that

conclusion. As is very familiar, the ipse dixit of an expert has little weight. The same might

be said about a few words of doubtful meaning uttered in an exchange with counsel which

Page 34 ⇓

were not followed up by an examination of the basis upon which they may have articulated

a considered opinion.

Was there a risk of which the pursuer should have been informed?

[60] As we have explained, the pursuer’s case is premised on there having been at 2230, a

risk, over and above that which is inherent in the second stage of labour, which by virtue of

the Montgomery duty, should have discussed with the pursuer in order to allow her to

decide whether she was content to proceed with labour with a view to an unassisted

delivery. The indicator of risk founded on by the pursuer is the appearance of the CTG

trace, as classified by the Guidelines. The pursuer accepts that a normal classification is not

an indication of risk. On the other hand, as it is put in her note of argument, the pursuer

contends that “A suspicious trace indicates a small risk of foetal compromise (including

cerebral palsy) due to hypoxia”.

[61] In any particular case, without there being a risk which has not previously been

discussed with the patient the Montgomery duty does not arise and therefore there can be no

breach of duty. As Mr Ferguson submitted, determining whether such a risk was indeed

present involves asking two questions: first, was there a risk? and second, was the relevant

clinician aware of the risk or, if she was not, should she have been aware of the risk? Only if

there was a risk and the relevant clinician was or should have been aware of it, does the

Montgomery duty arise. Where there is a dispute about the matter the first question will

require expert medical evidence in order to answer it, the issue being, given the clinical

presentation what were the reasonably likely risks in the light of the available treatment

options? In the event that there was a risk but the relevant clinician was not aware of it, the

second question will also require expert medical evidence in order to answer it, the issue

Page 35 ⇓

being whether a clinician of ordinary competence exercising reasonable care would have

been aware of the relevant risk at the relevant time.

[62] The final preliminary point that we would make in this part of our opinion is that the

Montgomery duty is about protecting the patient’s right to personal autonomy. The

importance of the existence of a risk of which the clinician is aware is to do with the

emergence of a situation in which a decision has to be made as to whether a particular

course of treatment should be followed or not followed. For a decision or choice to have to

be made there must of course be more than one choice which is available and as to which a

decision must be made. The availability of choice in any particular case is again a matter for

medical evidence.

[63] In the present case, the registrar, who was the relevant clinician, considered the trace

to be normal. It follows that she was not aware of the emergence of any additional risk

beyond that which may be taken already to have been discussed. The Lord Ordinary found

that interpreting the trace as normal was not negligent. It follows from that that unless the

Lord Ordinary can be shown to have been wrong in her understanding of the evidence on

which she came to her conclusion, the Montgomery duty did not arise. We do not consider

that the Lord Ordinary can be shown to have been wrong. On that basis the reclaiming

motion falls to be refused. However, in our opinion, that must also be the fate of the

reclaiming motion even if a different view were to be taken on whether the registrar had

been negligent in interpreting the trace as she did. We shall give our reasons.

[64] If it is supposed that interpreting the trace as other than suspicious was negligent the

question would come to be what should the notional competent registrar have made of a

trace properly classified as suspicious and, in particular, whether the notional registrar

would have considered that the CTG demonstrated “a risk of foetal compromise (including

Page 36 ⇓

cerebral palsy) due to hypoxia”. On behalf of the pursuer Mr Milligan argued that to the

extent that the matter was not simply self-evident, that a suspicious trace was indicative of a

risk (perhaps small but, having regard to the potential consequences, sufficiently material to

merit discussion with the pursuer) was demonstrated by or at least could be inferred from

the terms of the Guidelines, including the Algorithm, and what Professor Murphy had said

about the possibility of foetal compromise in the second stage of labour. We disagree.

[65] In the passage in Professor Murphy’s cross-examination founded on by Mr Milligan

(MS747 to 748) it had been put to her that the appearance of the CTG was unusual and that

the midwife was unlikely to have seen a trace like it before. Professor Murphy accepted

that. It was then put to her that, at a point prior to her calling on the registrar, the midwife

would have had at least to consider whether the baseline was high (tachycardia) or

indeterminate. Professor Murphy rejected tachycardia with late decelerations as something

she would have expected the midwife to consider because the CTG did not have these

features, but she accepted that the midwife would at least have to consider whether the

baseline was indeterminate. Mr Milligan, in his role as cross-examiner, then asked: “And in

that case, she would have had to consider that at least a possibility that there was a risk of

foetal compromise?” to which Professor Murphy replied:

“Certainly. There is a possibility of foetal compromise for every foetus in the second

stage of labour. If a midwife calls you for a second opinion, that means there is a

heightened concern about the possibility of foetal compromise.”

That is saying no more than, first, that there is always a risk of foetal compromise during

the second stage of labour, that it is inherent and inevitable; and, second, that clinicians are

aware of that and in the event that a CTG is difficult to interpret their concern will be

heightened. In the present case it was because of her uncertainty over interpretation of the

Page 37 ⇓

trace that the midwife called on the registrar for a second opinion. The criticism that Mr

Milligan makes of the registrar is in not interpreting the trace as suspicious. Assuming that

to be a good criticism the question would then arise as to whether a suspicious trace should

be taken to indicate a known risk over and above or additional to the inherent risks

associated with the second stage of labour. Mr Milligan may be entitled to say that if there

was a risk it was a risk of foetal compromise (albeit to what extent is uncertain) but in order

to succeed at this stage of his argument he must be able to point to evidence that there was a

risk indicated by a suspicious trace of which the registrar should have been aware. The

passage to which Mr Milligan drew attention does not support that.

[66] The Lord Ordinary concluded that such evidence as there was militated against a

finding that a CTG classified as suspicious posed a material risk of foetal compromise which

would result in brain damage (opinion para [327]). On the basis of the passages of evidence

which were drawn to our attention, we would agree with that assessment. In chief

Professor Murphy explained that a CTG “may be suspicious, which requires observation, or

it may be normal, which requires observation anyway because we are in the second stage of

labour, but there is no indication for an obstetric intervention at this moment in time”

(MS552). In other words, a suspicious trace implies no more risk than a normal trace and

both merit observation but nothing more. In cross-examination Professor Murphy

confirmed her understanding that the midwife had recorded the registrar’s assessment of

the trace as “happy with CTG, or happy to continue something to that effect” (MS663). That

meant that the registrar’s classification must have been normal or suspicious (MS665); “it

was one of two things, either of which the correct management is close monitoring, which

was the management that was implemented, so I have no difficulty defending her signing

the CTG on that basis” (MS66). In Professor Murphy’s opinion the decision of the registrar

Page 38 ⇓

that it was satisfactory to continue with labour in the light of a normal or suspicious trace

was not unreasonable. At that point if she spoke to the mother, who would at that point

have been very busy pushing, she should have told her “I have reviewed the CTG. You

appear to be making good progress. We’ll keep a close watch on things and the midwife

will call me back if she needs me” (MS666 to 669). The appropriate plan, independent of

whether the trace was interpreted as normal or interpreted as suspicious was simply

ongoing observation or “watchful waiting” (MS685, 688, 690, 752). Although very limited

reference was made to his evidence, it would appear that this is also the approach that the

pursuer’s expert, Dr Walkinshaw, would have taken. When asked by Mr Milligan in re-

examination what, if anything, he would have done if he had interpreted the trace as no

more than suspicious he replied:

“it would depend precisely which feature or features were of concern, what you

knew about the foetus up until that point and the labour progress. Generally

speaking, you might observe for a period of time when it’s suspicious, even in the

second stage … it would be usual to observe for a period of time” (MS487).

[67] As an indicator of there being a risk of foetal compromise associated with a

suspicious trace which warranted discussion with the mother Mr Milligan pointed to the

Algorithm which stated that where a CTG was classified as suspicious using the criteria in

the Guidelines, steps were to be taken to “Ensure that mother is informed of concerns and

included in management plan.” Agreeing with what was submitted by Mr Ferguson, we do

not consider that this piece of text goes the distance of establishing that there was a risk. As

Mr Ferguson emphasised, the wording used in the Algorithm differed from the legal duty in

Montgomery at [87]. There is no legal duty to inform the reclaimer of “concerns”; the duty is

to inform of known material risks. The meaning of the word “concerns” was not explored in

evidence. There is no basis for equating it with risk. The Algorithm is not entirely easy to

Page 39 ⇓

understand but it appears to recommend only conservative measures in the light of a

suspicious trace: “ensure that the mother is not lying supine, encourage mother to adopt left

lateral position, check blood pressure, give 500ml crystalloid [a fluid replacement] if

appropriate”. That recommendation is not suggestive of an increased risk of foetal

compromise and it does not point to any decision which the mother might require to make.

However, a more critical point was made by Mr Ferguson when he submitted that it was

very dangerous for a lawyer to interpret the Algorithm and the Guidelines of which the

Algorithm forms part, without hearing from a witness in one of the professions to which

these documents were directed. This, in our opinion, must be correct. The Guidelines were

published by the Royal College of Obstetricians and Gynaecologists in order to provide

guidance for those who required to use and to interpret cardiotocography in intrapartum

foetal surveillance. They are of the nature of a specialised medical text aimed at a

specialised medical audience. Mr Milligan sought to construe part of that text as inferring

that the classification of a trace as suspicious would or should have indicated a risk of foetal

compromise, but that was Mr Milligan’s construction alone; it had not been elicited from

any of the expert medical specialists who had given evidence at the proof. With all respect

to Mr Milligan, it is not the role of counsel to embark on an exposition of a technical text

which has not been the subject of the evidence of an appropriately qualified witness. A

somewhat similar, if perhaps more elaborate, exercise was attempted before an Extra

Division in Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 1 SC 192. It provoked a

response from Lord Osborne, giving the opinion of the court, at para [81], which we would

see to be apposite to the circumstances of the present case:

“[81] In the course of the hearing before us much use was made by counsel for the

pursuers of extracts from textbooks on medical practice. Indeed, at times, the

submissions made to us came to resemble lectures on medical practice. We think it

Page 40 ⇓

right to emphasise certain points regarding the use of textbooks in the context of a

case relating to medical negligence. In the first place, it has to be recognised that a

medical textbook, dealing with accepted medical practice, however authoritative it

may be and however distinguished the author or authors may be, of itself, possesses

no evidential value. Its subject-matter will not be within judicial knowledge.

However, a passage from such a book may acquire evidential value to the extent that

it is adopted by a witness as representing his opinion, or otherwise dealt with in the

evidence of a witness. In the second place, as a result of what has just been said, in

the context of an appeal from a decision of a judge of first instance, it is vain to

attempt to make use of textbooks which have not been put to witnesses in the case

before that judge, so that they may thus acquire evidential status. In the present case,

while certain passages from textbooks were put to certain witnesses, others were not,

yet they were sought to be relied upon. In the third place, in the course of the

hearing before us, discussion developed even in relation to the interpretation of

certain passages in these textbooks. We consider that it would be utterly wrong for

us to embark upon the business of interpreting the meaning or scope of propositions

to be found in medical textbooks. Such matters as that must be the exclusive

responsibility of expert medical witnesses, to whom the passages concerned have

been put in evidence.”

The use that Mr Milligan sought to make of the Algorithm, unsupported as it was by any

expert testimony, was not legitimate. What he put forward as evidence from which an

inference might be drawn was simply not evidence.

[68] By way of summarising his argument, Mr Ferguson submitted that the

Lord Ordinary was entitled to find the trace at 2230 normal or at worse suspicious; but even

if that were not to be accepted it did not matter because there was no evidence of risk in the

light of a suspicious trace or that the registrar knew or ought to have known of risk. What is

relevant is risk, not concerns. The Montgomery duty had not been shown to have arisen in

this case. One does not get to the issue of materiality unless a risk is established and

brought home against the relevant grade of doctor. The Algorithm did not fill the gap. Lack

of evidence was the determinative factor. We would agree with all of that.

[69] The reclaiming motion must therefore be refused.

Postscript: Professor Murphy’s understanding of the law

[70] The final paragraph of the pursuer’s note of argument included the proposition that

Page 41 ⇓

Professor Murphy’s evidence that it was only necessary to obtain consent when intervention

was being considered and not when what was in issue was simply progressing with labour,

was contrary to the ethos of Montgomery and Webster. Had Professor Murphy said that and

had she meant it as a general statement of the principles of good medical practice which

informed the decision of the Supreme Court in Montgomery then we would consider her to

have been wrong; a potential decision not to take action may require the involvement of the

patient just as a potential decision to take action may require it. Were Professor Murphy to

be wrong in what she said it would have no effect on our decision but in fairness to her we

would wish to make clear that we do not consider that in the passage under consideration

(MS688 to 689) she did say what was attributed to her.

[71] The context of the passage of evidence referred to by Mr Milligan was

Professor Murphy’s conclusion that the registrar must have interpreted the trace as normal,

or at least no more than suspicious and confirmed to the midwife that it was satisfactory to

continue with the previously determined plan which was to continue with labour subject to

watchful waiting. The answer which gave rise to Mr Milligan’s criticism was:

“You would generally get informed consent for intervening. If you are planning to

continue to observe, you simply say hello, who you are, you’ve looked at the CTG,

she’s making good progress, and that you will be called back if there are any

concerns. That is the correct approach.”

Mr Milligan followed this up with: “So, you don’t think you need to obtain consent to

continue with labour?”, to which Professor Murphy answered:

“It’s inherent …in the woman’s trust that she is on the labour ward being cared for

by staff who are helping her to achieve a vaginal delivery. If the obstetrician needed

to intervene, then of course she would need to explain her reason for doing so,

discuss what the options were and, if possible, the risks and benefits of the approach

she was going to take.”

Page 42 ⇓

We would regard Professor Murphy’s answers as being entirely coherent and, to the extent

they might be seen as a reflection of what was decided in Montgomery, correct as a matter of

law. Where it is possible, the patient must be involved in the decisions which require to be

made in a course of treatment in order that she can assess the balance between risk and

benefit, and she must be given the advice necessary to allow her to give informed consent.

In the case which the professor was being asked about such a discussion was to be taken to

have occurred at the time of determining the original management plan, that being for

spontaneous vaginal delivery with watchful waiting in the second stage up to the point of

delivery subject to the possibility of intervention “if there are any concerns” requiring the

registrar to be called on by the midwife. At about 2230 there were concerns on the part of

the midwife in that she was uncertain about the interpretation of the trace. She called on the

registrar who attended and assessed the CTG, in Professor Murphy’s view, as normal, or at

least no more suspicious. Rightly in Professor Murphy’s opinion, the registrar did not find

there to have been a material change in the clinical picture. There was therefore no need to

consider adopting an alternative course of treatment to the previously agreed plan to which

the pursuer had been party. We would see Professor Murphy’s reference to “intervening”

as meaning departing or considering departing from the plan to proceed to spontaneous

delivery. That would require discussion because it implies new information (the emergence

of risk) and a new risk/benefit balance. However, if there was no question of departing from

the previously agreed plan (because there was no clinical reason to consider so doing) there

was no decision to be made and no need to discuss matters with the patient; her consent to

what she had previously agreed was, as Professor Murphy put it, “inherent”.