Name: Tom Doherty

Student Number: 1214480

Question: Evaluate the impact of Montgomery v Lanarkshire [2015] UKSC 11 on the
law of consent in the United Kingdom.
Word Count: 2000

Deep rooted at the heart of medical practice is the concept of patient autonomy, the
cornerstone of modern medical jurisprudence in the United Kingdom 1. Essential to
an autonomy of choice concerning a patients treatment is the doctrine of informed
consent. Without consent, touching of any kind may be considered as a civil wrong
of battery, assault or trespass. The important distinction between consent and
informed consent is that the latter concerns a situation in which the patient is not
provided with all the necessary information required to make a decision on
treatment. As advocated by the European Court of Human Rights, the imposition of
medical treatment, without the consent of a mentally competent adult patient, would
interfere with a persons physical integrity 2 and would engage Convention rights.
Without the doctrine of informed consent, the medical profession would have free
reign over decisions regarding both a patients dignity and autonomy. Informed
consent has now been affirmed as law in the landmark Supreme Court case of
Montgomery v Lanarkshire3, with doctors having to consider what a reasonable
person in the patients position would deem material 4.
Historically, a trespass action will fail if the patient has been informed in broad terms
of the nature of the procedure which is intended 5. A patient would be entitled only to
claim negligence, as cases regarding battery6 and assault7 would require a complete
absence of consent. Within the last half century, the nature of information required to
satisfy sufficient consent has judicially developed, with a shift away from medical
paternalism to a more patient-centric model. In 1955, to establish liability in a
consent case, a patient would have to establish that there was a normal practice
which had not been adopted by their doctor, and that the course taken was one
which no professional man of ordinary skill would have taken had he been acting
with ordinary care8. This approach was approved in Bolam 9, whereby the doctor was
1 J K Mason and G Laurie, Mason and McCall Smith's Law and Medical Ethics (9th edn,
2013) 9.02
2 Pretty v United Kingdom (2002) 35 EHRR 1 63
3 Montgomery v Lanarkshire (2015) UKSC 11
4 Montgomery (n3) 87
5 Chatterton v Gerson (1981) 1 All E.R. 257 443
6 Reibl v Hughes (1980) 2 SCR 880
7 Thomson v Devon (1899) 15 Sh. Ct. Rep.209
8 Hunter v Hanley (1955) S.C. 200 206
9 Bolam v Friern Hospital Management Committee (1957) 1 WLR 582

not prosecuted as he had acted in accordance with practice adopted by a

responsible body of medicine, regardless of the size of this responsible body 10.
The Bolam standard remained until 1985, where it was modified by Sidaway 11.
Here, a non-disclosed risk of paralysation (1-2%) was not considered as falling within
Bridges substantial risk of grave consequences12 exception, and thus the Bolam
standard partly remained. I say partly as academics consider this case as a slight
shift in the general direction of the prudent patient doctrine 13. In the verdict, Judge
Templeman took a more balanced judgement 14, expressing a need for the wishes of
patients and doctors to both be respected. Scarman, in his dissent, argued that due
to developments in informed consent, specifically in America 15, doctors have a duty
to tell a patient of any risk inherent in the treatment. Although it has been argued that
Sidaway represents a major deviation16 from the Bolam standard, I would consider
this to be a slight overstatement of its overall importance in the progression of
informed consent. With Scarman and Templeman excepted, the unanimous opinion
was that unlikely side effects need not be discussed with the patient.
For Johnson, due to Scarmans dissent, the suggestion of an improved balance, and
the substantial risk exception, Sidaway left an enduring legacy of uncertainty 17. In
fact, cases subsequent to Sidaway set a new standard, as exhibited clearly in
Pearce18, whereby any significant risk which would affect the judgement of the
reasonable patient19 must be communicated an endorsement of Bridge in
Sidaway. This dictum expressed by Lord Woolf would come to influence the decision

10 Maynard v West Mids Regional Health Authority (1985) 1 All E.R. 653
11 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital
(1985) AC 87
12 Sidaway (n11) 900
13 A.Maclean (2004) The Doctrine of Informed Consent: does it exist and has it crossed the
Atlantic 24 Legal Studies 386, 405
14 Sidaway (n11) 664
15 Canterbury v Spence (1972) 464 F2d 772 DC Cir
16 K. Mason and D. Brodie (2005) Bolam, Bolam - wherefore art thou Bolam 9(2) Edin LR
298, 300-301
17 L Johnston (2015) Informed Consent and the lingering shadow of Chester v Afshar,
S.L.T. 2015, 20, 87
18 Pearce v United Bristol Healthcare NHS Trust (1999) P.I.Q.R. 53
19 Pearce (n18) 22

laid down in Montgomery. Chester v Afshar20 followed in a similar suit. Ms Chester

contended, in evidence which conflicted with Dr Afshars, that in pre-treatment
consultations she had not been informed of the possibility of the paralysis she
suffered as a consequence of the treatment. Known as a cauda equine contusion,
Ms Chester argued that she would have delayed the operation had she known of the
risk of it. Despite the grey area21 in terms of causation, as she would have
eventually still had surgery, this was trumped by a clear duty of care on behalf of the
doctor to inform the patient of risks involved. Although his comments on concerning
informed consent were mentioned obiter dictum, Lord Walker recognised the
importance of personal autonomy, and an entitlement to information and advice. The
paradigm of doctor-patient relationship implicit in the speeches in Sidaway had
ceased to reflect the reality and complexity of the way in which healthcare services
were provided22. It came to pass that the obiter dictum statements in Chester would
become the ratio decidendi in Montgomery.
If Chester v Afshar can be seen as a move towards patient-centred 23 consent,
Montgomery v Lanarkshire may be seen as the nail in the coffin of medical
paternalism24. Mrs Montgomery, a type 1 diabetic woman who was small of stature,
fell pregnant in 1999, and due to her condition and size was at a greater risk of
having a baby that was larger than average. One of the medical risks of a pregnancy
would therefore be shoulder dystocia, whereby the shoulders of the baby have
grown so much so that they are unable to pass through the womans pelvis without
medical intervention25. Dr McLellan, her consultant, chose not to discuss the 9-10%
risk of this with her as she considered it to be slight, and stated that if she informed

20 Chester v Afshar (2004) UKHL 41

21 L Johnston (n17) 86
22 M Lyons (2015) Montgomery v Lanarkshire Health Board: liability - clinical negligence birth defects, J.P.I. Law 2015, 3, 131
23 General Medical Council, The GP Consultation in Practice (gmc-uk.org, 7 May 2014)
<http://www.gmcuk.org/2_01_The_GP_consultation_in_practice_May_2014.pdf_56884483.pdf> accessed 10
Nov. 15
24 General Medical Council, Consent Guidance: Legal Annex Common Law (gmcuk.org) <http://www.gmcuk.org/guidance/ethical_guidance/consent_guidance_common_law.asp> accessed 10 Nov.
15
25 Montgomery (n3) 6-25

every patient of these risks then everyone would ask for a caesarean 26. During the
birth, shoulder dystocia occurred, leading to a brief deprivation of oxygen to the baby
due to an occlusion of the umbilical cord. The child was diagnosed with cerebral
palsy of a dyskinetic type, as well as a brachial plexus injury resulting in Erbs palsy
(a paralysis of the arm).
Although the Inner House in Montgomery felt an obligation to follow, and endeavour
to apply27 Sidaway, the Supreme Court tacitly ceased to apply this reasonable
doctor test. Instead, the decision set a new modern standard for informed consent,
essentially replicating Lord Scarmans dissent and endorsing the communication of
risks if a reasonable person in the patients position would be likely to attach
significance28 a risk they would consider material29. The decision was a reflection
of developments in the law since Chester v Afshar. Not only did the court take into
account consent cases in the UK, where there had been significant steps forward in
the adequate provision of information to patients 30, but they also considered other
relevant common law jurisdictions. Australian law had recently recognised 31 the basic
flaw in approaching a doctors duty of care from one reasonable viewpoint, and
instead concentrated on the idea of a hypothetical reasonable patient. Similarly,
Canadian law expressed a need to take close account of a patients questions
regarding treatment32, and that any nervous feelings felt towards an operation should
be met with an honest explanation of any risks involved, along with the provision of
any alternatives something which was clearly not done in Montgomery. Balancing
of risks should be considered as the starting point 33.
Referenced in Montgomery were the recent General Medical Council guidelines,
which had been issued two years prior, providing clear evidence that this approach
to patients should not be a surprise to doctors and medical consultants. Doctors are
26 Montgomery (n3) 14
27 Montgomery v Lanarkshire (2013) SC 245
28 Sidaway (n11) 889
29 Montgomery (n3) 87
30 Pearce (n18)
31 Rogers v Whitaker (1992) 175 CLR 479
32 Reibl (n6)
33 L Sutherland (2015) Consent post Montgomery, Rep. B. 126, 6-8

encouraged to work in partnership with patients, sharing with them the information
they will need to make decisions about their care 34. The guidance treated Chester v
Afshar as their leading authority, advising that the doctor must tell patients if
treatment might result in a serious adverse outcome, even if the risk is very small.
Social values had quite obviously developed at a faster pace than the law and
sufficient legal and ethical reasons35 existed for the Supreme Court to overrule the
House of Lords decision in Sidaway.
Although the law on informed consent is now clear, questions may still be raised
regarding the unanswered question of causation. Contrary to Lord Ordinary in the
Inner House36, the Supreme Court decided that had Mrs Montgomery been provided
with all relevant information regarding risks, she would have opted for a caesarean.
However, in the hypothetical scenario where Mrs Montgomery wasnt informed of
risks, but would still have opted for a natural vaginal birth had they been disclosed,
how would the courts decide in awarding damages? Although unlikely, this inability to
establish factual causation on conventional principles 37 means that the matter of
causation will continue to linger in the shadows 38 post-Montgomery, despite efforts
to attach a conventional sum of damages to to reflect the breach of a patients right
to make an informed and entirely autonomous decision 39.
A patients right to make their own decision40 is vital, and is one of the great
outcomes of the Montgomery decision. Although this has now introduced a
subjective element on behalf of the patient, allowing them to assess matters of
quality of life, bodily integrity, relief of pain, and any alternatives available 41,
there may be disadvantages to this approach. The idea of a material risk is that it is
one which the patient themselves will consider significant, yet how will doctors be
able to obtain all sufficient knowledge without seeking to overload the patient with
34 General Medical Council, Good Medical Practice (gmc-uk.org 2013) <http://www.gmcuk.org/guidance/good_medical_practice.asp> accessed 10 Nov. 15
35 The Practice Statement (1966) 3 All ER 77
36 Montgomery v Lanarkshire (2010) CSOH 104, 267
37 L Johnston (n17) 88
38 L Johnston (n17) 88
39 Rees v Darlington Memorial Hospital Trust (2004) 1 A.C. 309
40 Montgomery (n3) 82
41 Montgomery (n3) 46

information in an attempt to avoid any legal repercussions? With more emphasis on

a doctor-patient dialogue, rather than a bombarding 42 of information, one may
empathise with the difficult position this may now put some doctors in. Conversely,
two situations exist where risks do not necessarily have to be disclosed. Either
where the patient refuses the information, or where there is a therapeutic
exception. This is an exception for situations where it is either reasonably
considered a disclosure of risks would be detrimental to the patients health, or
where circumstances of necessity exist.
Generally, if the doctor considers the information material, he or she will disclose it.
It was considered unreal to place the onus of asking on a patient who may not
know that there is anything to ask about43. In Montgomerys case, she was clearly a
highly intelligent woman; a graduate in molecular biology with family in the medical
profession44. This implies that her understanding of medical risk was more
sophisticated than that of the average patient 45. With a new subjective, patientorientated, approach, does this translate to there being a lesser duty to disclose to
patients with no scientific qualifications?
Montgomerys practical implications will centre around an increase in doctor-patient
dialogue and consent forms required in order to evade legal action 46. The courts,
however, must be careful not to throw the baby out with the bathwater 47, and it has
been stressed in the Medical Law Review that the conscience of the doctor and their
moral decision-making capabilities may have been restricted. Dr McLellan, however,
had the moral standpoint that it is not in the maternal interests for women to have
caesarean section48, and it is this subjective and poor practice the law is effectively
restricting.
42 T Elliot (2015) A break with the past? Or more of the same? P.N., 31(3), 190-194
43 Montgomery (n3) 58
44 Montgomery (n3) 6
45 E Reid (2015) Montgomery v Lanarkshire Health Board and the rights of the reasonable
patient, Edin. L.R. 2015, 19(3), 362
46 N Khalique (2015) Informed Consent: the dawning of a new era, British Journal of Oral
and Maxillofacial Surgery 53 479-484
47 J Miola (2015) Making Decisions about Decision-Making: Conscience, Regulation and
the Law, M.L.R. 23 2, 282

48 Montgomery (n3) 13

There is no simple rule for medical staff when advising patients. Informed consent
stresses that the patients perspective must be ascertained, and a subsequent
documentation of this will be the mark of a capable doctor. Asim Sheikh suggests
that doctors should take part in a stop process 49, and personally assess whether
the consultation procedure has been sufficient. If not, then no amount of legal
process will be able to cure such ill. Ultimately, with a rise in expectations to meet
extensive consulting procedures, yet no rise in funding, a doctor must improve their
quality of work and decision-making skills in order to avoid potential legal action in
the unlikely event that a potential risk comes into fruition. This practice was commonplace prior to the decision in Montgomery, and although the case has meant no real
change in the law in practice, it provides a legal basis for ensuring that all future
cases follow its clear and patient-orientated guidelines.

49 A Sheikh (2015) Groundhog Day - re-visiting patient-centredness and patient

safety...again...and again? M.L.J.I., 21(1), 3

Bibliography
Primary Sources
Legislation
The Practice Statement (1966) 3 All ER 77
Cases
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Canterbury v Spence (1972) 464 F2d 772 DC Cir
Chatterton v Gerson (1981) 1 All E.R. 257 443
Chester v Afshar (2004) UKHL 41
Hunter v Hanley (1955) S.C. 200 206
Maynard v West Mids Regional Health Authority (1985) 1 All E.R. 653
Montgomery v Lanarkshire (2010) CSOH 104, 267
Montgomery v Lanarkshire (2013) SC 245
Montgomery v Lanarkshire (2015) UKSC 11
Pearce v United Bristol Healthcare NHS Trust (1999) P.I.Q.R. 53
Pretty v United Kingdom (2002) 35 EHRR 1 63
Rees v Darlington Memorial Hospital Trust (2004) 1 A.C. 309
Reibl v Hughes (1980) 2 SCR 880
Rogers v Whitaker (1992) 175 CLR 479
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley
Hospital (1985) AC 87
Thomson v Devon (1899) 15 Sh. Ct. Rep.209
Secondary Sources
Books
Mason J. K and Laurie G, Mason and McCall Smith's Law and Medical Ethics (9th
edn, 2013) 9.02
Journals
Elliot T (2015) A break with the past? Or more of the same? P.N., 31(3), 190-194

Johnston L (2015) Informed Consent and the lingering shadow of Chester v Afshar,
S.L.T. 2015, 20, 85-89
Khalique N (2015) Informed Consent: the dawning of a new era, British Journal of
Oral and Maxillofacial Surgery 53 479-484
Lyons M (2015) Montgomery v Lanarkshire Health Board: liability - clinical
negligence - birth defects, J.P.I. Law 2015, 1-5
Maclean A (2004) The Doctrine of Informed Consent: does it exist and has it crossed
the Atlantic 24 Legal Studies 386
Mason K and Brodie D (2005) Bolam, Bolam - wherefore art thou Bolam 9(2) Edin
LR 298, 300-301
Miola J (2015) Making Decisions about Decision-Making: Conscience, Regulation
and the Law, M.L.R. 23 2, 263-282
Reid E (2015) Montgomery v Lanarkshire Health Board and the rights of the
reasonable patient, Edin. L.R. 2015, 19(3), 360-365
Sheikh A (2015) Groundhog Day - re-visiting patient-centredness and patient
safety...again...and again? M.L.J.I., 21(1), 1-3
Sutherland L (2015) Consent post Montgomery, Rep. B. 126, 6-8
Websites
General Medical Council, Consent Guidance: Legal Annex Common Law (gmcuk.org) <http://www.gmcuk.org/guidance/ethical_guidance/consent_guidance_common_law.asp> accessed
10 Nov. 15
General Medical Council, The GP Consultation in Practice (gmc-uk.org, 7 May
2014) <http://www.gmcuk.org/2_01_The_GP_consultation_in_practice_May_2014.pdf_56884483.pdf>
accessed 10 Nov. 15
General Medical Council, Good Medical Practice (gmc-uk.org 2013)
<http://www.gmc-uk.org/guidance/good_medical_practice.asp> accessed 10 Nov. 15