The case of Montgomery

9 April 2024

The case of Montgomery – how does it affect us now? 

Consent  

One of the UK’s healthcare system’s central principles is informed consent, and it is required by both medical ethics and human rights law. Informed consent means that before any patient can consent to a procedure or any form of medical treatment, they must be fully aware of what they are consenting to.  

Healthcare providers are obligated to provide patients with as much information about a medical treatment procedure so that the patient may make an informed decision on what they think is the right decision for them. This includes providing the patient with the risks and benefits of the proposed procedure or treatment, any alternatives, and the outcome if the patient does not continue with the treatment or procedure. 

In clinical negligence cases, the core case law we rely upon is the case of Montgomery v Lanarkshire Health Board (2015). This outlines that a treating clinician must provide information regarding any material risks of a procedure or treatment. This must be disclosed before the treatment is carried out.  

Informed consent cases can be challenging in clinical negligence because the claimant must prove;  

1. They were not provided with the benefit of informed consent. This could mean consent was never given, or that consent was given but the information provided about the material risks and benefits of the procedure was inadequate. 
2. They must also establish that had the claimant had the benefit of informed consent, they would have made a different decision regarding their treatment options, than what was taken.  

Recent case law  

Negus v Guy’s and St Thomas’ NHS Foundation Trust (2021) is a recent case involving the issue of informed consent in a medical negligence setting.  

In this case, the court ruled that the law in Montgomery would continue to apply, and it was reinforced in Negus that a doctor will not have a duty to disclose technical information to the patient if that patient will be unable to understand it. As a result of this, the court ruled that the surgeon was able to exercise their own judgment and determine which outcome would be the best for the patient. Therefore, the claimant’s case was unsuccessful. 

This means while treating clinicians have a duty to disclose the material risks and benefits of a procedure, this is limited to information the patient will benefit from and understand. The treating clinicians are not however required to explain the technical information involved in a procedure.  

AF v Wrightington, Wigan and Leigh NHS Foundation Trust (2020) is another case involving the issue of informed consent in medical negligence.  

The Defendant in this case disputed that the duty to inform, further to Montgomery v Lanarkshire Health Board (2015), did not extend to the ‘technical details of surgery,’ like the case above. However, the expert evidence in this case concluded that on the balance of probabilities, had the treating clinician proceeded with the treatment the claimant had consented to, she would have avoided further complications of the more complex surgery she did not consent to.  

This case demonstrates that if informed consent is not given, and if it had been, the outcome of the treatment would have been altered, then a successful clinical negligence claim can be made.