In A v East Kent University NHS Foundation Trust  EWHC 1038 (QB), John Whitting QC appeared for the Defendant Trust. The Claimant argued that, during her pregnancy, she should have been informed of the risk that her fetus was suffering from a chromosomal abnormality. It was her case that the risk was around 3% and, following Montgomery v Lanarkshire Health Board  UKSC, that it was sufficiently material for her to be informed of it, even though it was common ground that the relevant RCOG guidelines did not, and would not now, require the treating obstetricians to do so. Further, she argued, had she been so warned, she would have undergone amniocentesis which would have confirmed the diagnosis and she would then have terminated the pregnancy.
John Whitting QC argued successfully that the risk of chromosomal abnormality was in fact much smaller (at less than about 1:1000) and was therefore not material within the definition of the Supreme Court in Montgomery so that the clinicians were not required to raise it with the Claimant. In a detailed judgment, Dingemans J. also rejected the Claimant’s submission that Montgomery required her to have been warned of any risk, no matter how small. Rather, he found that ‘Montgomery is not authority for the proposition that medical practitioners need to warn about risks which are theoretical and not material.’ Further, the Court found that even had the Claimant been advised of that risk, she would not have elected to undergo amniocentesis and, even if she had, and the diagnosis confirmed, she would not have elected to undergo termination. The Claimant did not seek permission to appeal.
This important case sets a sensible limit on the scope of Montgomery and one which is consistent with the latter’s test of materiality.