Q&As

When dealing with consent issues post-Montgomery, are the characteristics of the patient taken into account? For example, if the patient is a doctor (albeit in a different specialism), could he/she be found to have knowledge of the risks over and above what the treating practitioner may have warned of?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on LexisPSL on 17/07/2019

The following PI & Clinical Negligence Q&A produced in partnership with Katherine Illsley of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • When dealing with consent issues post-Montgomery, are the characteristics of the patient taken into account? For example, if the patient is a doctor (albeit in a different specialism), could he/she be found to have knowledge of the risks over and above what the treating practitioner may have warned of?

When dealing with consent issues post-Montgomery, are the characteristics of the patient taken into account? For example, if the patient is a doctor (albeit in a different specialism), could he/she be found to have knowledge of the risks over and above what the treating practitioner may have warned of?

In Montgomery v Lanarkshire Health Board, the Supreme Court clarified that the adequacy of a medical professional’s disclosure of risk to the patient should not be judged ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’ (the ‘Bolam’ test). Instead, the test should be patient-centred and should have regard to the risk that a reasonable patient, and one in the particular circumstances of the patient in question, would be likely to attach significance to, and so ought to know about, before being able to give informed consent.

The ‘reasonable’ patient is an objective test, whereas the ‘particular circumstances of the patient’ will be subjective and highly fact-specific to each case. The patient in the case of Montgomery itself had specific physical characteristics as a diabetic that was relevant because it resulted in an increased risk of shoulder dystocia of the baby

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