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Montgomery and consent to treatment

If you have undergone surgery, and indeed some treatments, your doctor will have asked you to sign a form in which you consent to the surgery or treatment.


If you have undergone surgery, and indeed some treatments, your doctor will have asked you to sign a form in which you consent to the surgery or treatment. Prior to signing you should have been advised what the procedure involves, why it is needed and the pros and cons of that procedure. There are cases where the patient develops a complication in circumstances where they feel they haven’t been properly advised about those pros and cons and perhaps wouldn’t have gone ahead had they been properly advised.

Until March 2015, in order to bring a case, the patient would need to prove the advice given did not meet the practice of a responsible body of medical practitioners in the relevant field. The case of Montgomery v Lanarkshire Health Board has changed the legal test so that a 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.

The significance of the case is the court will no longer depend on experts to give an opinion on whether the advice given to the patient was to an acceptable standard. Instead it is fact sensitive to the characteristics of the person and therefore whether the consent process was negligent will be decided on the facts of the case.

By Sara Westwood at sarawestwood@m-j-p.co.uk

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