Consent after Montgomery - it’s a changed landscape
Following Montgomery in 2015 there has been a whole raft of case law which has followed the new “material risk” principles which have efficiently replaced the traditional Bolam “responsible medical opinion” approach established by the 1985 case of Sidaway.
Because the new test is a subjective test and relates to the patient’s concerns and is fact specific, consent cases have been somewhat difficult to predict since Montgomery and they are also dependent on the judicial approach to causation regarding of the discussion of risks and benefits of the treatment and alternative treatments the patient would regardless of the advice have still gone ahead with the procedure.
The case of Webster v Burton NHS Trust 2017 is a good example highlighting the old and the new approaches. The first instance trial took place before the Montgomery decision and the Judge applied the Bolam test and said it was reasonable for the doctors not to offer the mother an earlier opportunity to induce birth.
The Court of Appeal following Montgomery reversed that decision and held that the doctor’s obligation was to present the material risks and uncertainties and allow the patient to make an informed decision.
The mother will accordingly receive substantial damages for the failure to provide her with proper information upon which she could have made an informed choice.