Rogers & Norton News

Consent in Clinical negligence Cases

Tuesday, December 8, 2015

Montgomery v Lanarkshire Health Board [2015] UKSC 11 has been decided this year by the highest court in the country and has transformed the law on consent in cases of clinical negligence. 

The starting point for consent cases is to remember that in law any form of intentional trespass to a person without consent is a claimable as a tort, known as battery and could be a criminal offence as well. As such when a doctor operates on a patient it is crucial that consent is obtained in most cases, and this explains why during a course of treatment the patient will be asked to sign a form of consent to the treatment.  

In relation to consent it is therefore crucial that a doctor explains the various risks to the patient to ensure they are properly informed and able to make an informed decision. In those circumstances, if the patient has not been given that information or has not been given sufficient information then a claim in negligence can be pursued if it can be shown that but for insufficient information being given, the patient would have made a different decision or perhaps reflected and had the surgery at a different time.

The Montgomery case concerned the extent of the duty on a doctor to provide informed consent to treatment. Prior to Montgomery the case of Sideway v Board of Governors of the Bethel Royal Hospital [1985] was the main case authority and held that the party bringing the claim had to show that the information provided to provide consent “fell below that which would have been provided by a responsible body of medical practitioners”.  This meant that if a doctor defending a claim in negligence could show that a reasonable body of doctors doing the same procedure would have done the same, then he had not been negligent and the claim should fail, regardless of the fact that not all doctors would have done the same.

If we fast forward 30 years to 2015 and Montgomery, seven Law Lords sitting in the Supreme Court have overturned the decision in Sidaway, acknowledging that the manner in which healthcare services are now provided and the way in which patients view their relationship with their doctor has changed. In the leading judgement it was acknowledged that the legal position now is that:

“A doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”

As such, applying the facts in Montgomery, whist the doctor followed the views of a responsible body of medical opinion and did not advise of a small but serious risk which under the old law would be a defence to the claim, applying the new test the claim succeeded before the Supreme Court as it was acknowledged that the risk was one to which the patient would attach significance if informed.

As a closing note of caution it should be observed that a claim in Clinical negligence cannot succeed solely on the absence of consent. The claim is in negligence and therefore the party bringing the claim must show a duty of care was owed, that there has been a breach (possibly the absence of material information to provide consent) and that the breach of duty has caused the loss. Clinical Negligence claims can often be some of the most complex to pursue and therefore expert legal advice is crucial in relation to such claims.

Rogers & Norton Clinical Negligence team can advise on all forms of clinical dispute and offer a free initial consultation. The team can be contacted on 01603 666001 or by email on mbh@rogers-norton.co.uk or tsn@rogers-norton.co.uk.