The landmark decision of Montgomery 2015, has led to varying outcomes

Due to introducing patient specific and fact sensitive principles, some say it has led to inconsistency and uncertainty

Consent Montgomery Applied 2017

The landmark decision of Montgomery 2015 as predicted has led to varying outcomes because it introduced patient specific and fact sensitive principles. Some might say it has led to inconsistency and uncertainty but there is no doubt that the Bolam and Sidaway approach has now been confined to history.

In Webster v Burton Hospitals NHS Foundation Trust 2017 the Court of Appeal allowed an appeal because the Trial Judge had applied the Bolam test in a situation where the parties had agreed that the hospital’s obstetrician had negligently failed to advise the patient on an abnormal ultrasound scan.

The trial Judge had nevertheless concluded that the outcome would not have resulted in induction and delivery three days earlier avoiding brain damage.

The Appeal Court disagreed with the Trial Judge’s conclusion and applying Montgomery principles asserted that W’s mother should have been warned of an increased risk arising form delay in delivery and had she been so warned, she would have opted for delivery sooner and thereby avoiding brain injury to her son.

In Thefaut v Johnston 2017 the Court considered that the Defendant neurosurgeon was liable to the Claimant C for failing to communicate material risks involved in the proposed treatment and to give various alternatives or variants in accordance with Montgomery. The surgeon had not advised about the chances of surgery aggravating C’s back pain were 5% and had not set out the options of her not having surgery which the Court held C would have considered or deferred surgery at least until she had received an accurate second opinion.

However, there are limits on claiming negligent treatment based on Montgomery and in Correia v University of North Staffs NHS 2017  the Claimant had received advice about a three stage operation to remedy a recurrent neuroma in her right foot. The trial Judge found that the operation had been performed negligently (because there was no evidence that nerve relocation was performed) but that causation was not proved as the surgery had not caused C’s on-going pain and suffering.

On appeal, C argued that she had consented to a three stage procedure, exploration, excision and relocation. She said that she had not been warned of the material risks if a crucial step namely nerve relocation was omitted.

Held - the failure to perform the third stage did not make it a different operation for the purposes of consent and the patients do not need to be advised of the risk of injury if a procedure is to be negligently performed and accordingly the scope of Montgomery has been restricted in this instance.

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