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The Legal significance of Informed Consent in UK Clinical Negligence Law: THE MONTGOMERY CASE

Scott Harding-Lister, Head of practice at Apex Health Associates

Scott Harding-Lister Scott is a qualified nurse and solicitor. He was a senior nurse within the NHS before leaving to pursue a career as a solicitor in City practices. In 2013 he set up Apex Health Associates and the expert witness practice has gone from strength to strength. Scott is a medico-legal expert, a nursing expert, and head of practice at Apex.

In UK healthcare, the imperative of informed consent transcends mere regulatory adherence; it stands as a cornerstone of medical practice. This blog considers the profound significance of informed consent in the medical arena, tracing its journey through the legal landscape with a focus on the pivotal Montgomery case (2015). The Supreme Court's ruling in Montgomery elucidated and reaffirmed existing legal principles and this examination serves as a detailed exploration of how the legal concept of informed consent has evolved and its far-reaching implications for medical professionals and institutions.

Why Informed Consent Matters:

  • Legal Mandate (Montgomery): In the UK, the legal fabric mandates the procurement of consent before any medical intervention, as underscored by the Montgomery case. This legal mandate is not merely a procedural formality but a substantive requirement underpinning the patient's autonomy and rights.

  • Respect for Autonomy: Beyond legal requisites, informed consent epitomises a fundamental display of respect for individual autonomy, granting patients the authority to dictate the course of their medical journey. The ethical dimension of informed consent aligns with the principles of patient-centred care and human rights, acknowledging the fundamental right of individuals to make decisions about their own bodies and healthcare.

How the Law Has Evolved:

  • Shifting Dynamics: In the past, a degree of deference was accorded to medical professionals, enabling them to make decisions on behalf of patients. Contemporary expectations, fuelled by readily available information, have reshaped this landscape, demanding a departure from historically paternalistic practices. The evolution of societal norms and the rise of patient empowerment have recalibrated the doctor-patient relationship, necessitating a more collaborative and transparent approach.

  • The Bolam Test: The Bolam test served as the benchmark, allowing doctors to determine information disclosure based on consensus within their professional community. However, evolving societal norms and expectations have necessitated a recalibration of this approach. Bolam, while reflective of the medical community's standards, was criticised for potentially side-lining patient preferences and autonomy. The rise of patient-centred care and the emphasis on shared decision-making have prompted a re-evaluation of the Bolam test's applicability in a modern healthcare landscape.

The Montgomery Case:

The Montgomery case, a watershed moment, afforded the Supreme Court an opportunity to meticulously reaffirm the legal framework surrounding consent. This landmark case not only clarified legal principles but also catalysed a paradigm shift in the understanding and application of informed consent.

  • Case Overview: Central to the case was Mrs Montgomery, a pregnant woman unaware of the risks of shoulder dystocia due to her size and diabetic condition. The unanimous ruling in her favour propelled significant legal principles.

  • Key Legal Points:

    • Doctors are now obligated to discuss treatment options and disclose risks to patients. This obligation extends beyond a mere acknowledgment of procedural details to a robust discussion that enables patients to make informed choices about their healthcare.

    • The concept of "material risks" took centre stage, emphasising the significance a reasonable person would attach to such information. Material risks are not confined to statistical probabilities but encompass factors that a reasonable person would consider significant in the context of their individual circumstances.

    • The Court held that doctors have a duty to disclose all material risks to patients, even if it contradicts the practice accepted by a responsible body of medical opinion (Bolam). The traditional deference to medical opinion was superseded by the recognition of the patient's right to receive information that is tailored to their specific needs and circumstances.

    • The Court emphasised a shift towards a patient-centric approach in which the information disclosed should be tailored to the individual patient's circumstances. This represents a departure from the one-size-fits-all approach and underscores the importance of individualised communication in the doctor-patient relationship.

Implications for Doctors, Hospitals, and Healthcare Staff:

The Montgomery case has fundamentally reshaped the legal terrain concerning consent and treatment decisions. This landmark judgment places heightened responsibilities on doctors, healthcare staff, and hospitals, necessitating meticulous and individualised information disclosure in consultation with patients. Adherence to these elevated standards not only ensures legal compliance but also fosters a culture of patient-centred care and collaborative decision-making within the healthcare realm.

As medical professionals navigate this evolving landscape, a full understanding of the implications of Montgomery becomes paramount.

  • Doctors’ Role Redefined: The role of doctors is redefined from being authoritative decision-makers to collaborative partners in the healthcare journey. The obligation to engage in meaningful discussions with patients, providing them with the necessary information to make informed choices, represents a departure from traditional paternalistic practices.

  • Institutional Adaptation: Hospitals and healthcare institutions are prompted to adapt their policies, procedures, and training programmes to align with the patient-centric ethos endorsed by Montgomery. Institutional frameworks must prioritise effective communication, individualised care, and shared decision-making to meet the evolving expectations of both patients and the legal landscape.

  • Legal Risk Mitigation: The Montgomery ruling introduces a higher degree of legal risk for healthcare providers. Failure to meet the standards set by the case can lead to legal consequences, including allegations of negligence. In this context, healthcare institutions must adopt robust risk management strategies, including comprehensive documentation practices and ongoing staff training.


In conclusion, the Montgomery case emerges as a catalyst in the evolution of medical law, harmonising its contours with the dynamic societal landscape and the ever-evolving medical model. Its resonance extends far beyond legal doctrines, ushering in an era marked by patient-centric care and collaborative decision-making. Within a society increasingly valuing autonomy, Montgomery recognises patients not as passive recipients but as active contributors to their healthcare. The traditional paternalistic paradigm yields to a more symbiotic and compassionate model, where healthcare stakeholders become partners in empowering patients to make informed decisions.

As Montgomery's echoes reverberate through legal and medical corridors, a fundamental truth emerges – the medical model has gracefully adapted to embrace a more humane, patient-centric ethos, aligning with the expectations of a modern and informed society. The enduring legacy of Montgomery lies not only in its legal precedents but in its call for a cultural shift towards a healthcare system that places patients at the centre, fostering collaboration, transparency, and respect for individual autonomy. In this evolving landscape, legal and medical professionals alike are entrusted with the task of navigating the complexities of informed consent in a manner that honours both the letter and the spirit of the Montgomery case.


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