MEDICO LEGAL M A G A Z I N E
THE ODYSSEY OF INFORMED CONSENT POST MONTGOMERY – H AVE WE REACHED ITH ACA? By Jonathan Godfrey, Barrister at Parklane Plowden Chambers (Leeds and Newcastle)
Jonathan specialises almost exclusively in clinical negligence work and his expertise covers the whole area, including orthopaedic injury, cancer misdiagnosis, cerebral palsy birth injury, surgical mishap and wrongful treatment and consent. He has worked with SpecialistInfo for over three years training expert witnesses in this area of law.
person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it“. Patient choice had found its way to the fore in informed consent, replacing the previous incarnation of medical paternalism.
It is now 6 years since the Supreme Court seemingly changed the legal landscape in respect of informed consent in its judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The test of materiality was born. A doctor was now “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 treatments“. The test of materiality was described as “whether in the circumstances of the particular case, a reasonable
Has there been any change in the legal (and also medical) landscape following the Montgomery decision? In particular:
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1. How have the courts implemented the materiality test from a practical perspective? 2. Has Montgomery had any noticeable impact on the number of cases brought before the courts? and; 3. Has there been any change in focus from the medical profession in terms of informed consent following the decision?