In Tasmin v Barts Health NHS Trust [2015] EWHC 3135 (QB), the Claimant sustained severe cerebral palsy after a period of acute profound hypoxic ischaemia at the very end of labour. She argued that she should have been delivered earlier by caesarean section in the light of a pathological CTG trace.

The Defendant Trust, represented by John Whitting, admitted that the pathological trace should have led to a fetal blood sample but denied that a caesarean was mandated. In any event, it argued that the sample would have been normal and, therefore, that the labour would have been allowed to continue: in which case, the Claimant’s collapse would not have been avoided.

The Claimant’s case was in the alternative: either the caesarean section was mandated by reasonable clinical practice or it was one of a range of reasonable management options which should have been offered, in accordance with Montgomery, to her parents. If so offered, it was argued, it would undoubtedly have been accepted.

Mr. Justice Jay rejected both arguments.

Firstly, in the circumstances of this case, reasonable obstetric practice (as set out in the contemporaneous and indeed current RCOG and NICE guidelines) demanded an FBS and not a caesarean section.

Secondly, he concluded that, even with a pathological CTG trace, the prospective risk of the Claimant suffering permanent neurological deficit, at the time at which it said that the caesarean should have been offered, was (at around 1:1000) ‘too low to be material‘ within the meaning of paragraph 87 of Montgomery. There was in those circumstances no obligation to offer caesarean section as an alternative to FBS.

In doing so, he explicitly agreed with the analysis of Mr. Justice Dingemans in A v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1038 (in which John Whitting also appeared for the Defendant) who similarly found that a risk that was merely ‘theoretical, negligible or background‘ did not have to be communicated to a patient. That risk was also, in that case, around 1:1000.

If the Claimant had been successful in her Montgomery argument, it would have meant that an obstetrician would have been under a legal obligation to offer treatment which was entirely contrary to her professional obligation (as defined in the relevant RCOG and NICE Guidance). As Mr. Justice Jay put it: ‘If [the Claimant] were correct, the option of a CS would have to be offered in every similar case even where (as here) the result of the FBS was normal. That would be flatly inconsistent with national guidance and as I have found standard obstetric practice.‘ The implications of such a finding could hardly have been overstated.

However, the Court was able to reconcile the clinician’s legal and professional obligations: ‘The reason the guidance has been formulated in the terms it has been is that the risks are sufficiently low that it is not regarded as mandatory or even good practice to spell them out to labouring mothers and/or confuse them by routinely offering a CS. In this way it is not difficult …to harmonise standard practice with the highest judicial authority.’ .

What might be characterised as the Defendant’s fightback against the more ambitious interpretations of Montgomery continues. In the immediate afterglow of the Supreme Court’s judgment, there were those who predicted the death of Bolam. The decisions in A and Tasmin suggest otherwise.