Warnings in the wind for informed patients as Supreme Court makes significant decision on consent to treatment


By Joel Donovan QC

The Supreme Court’s decision in Montgomery v Lanarkshire CC [2015] UKSC 11 is the most significant of the 21st century on the issue of consent to treatment. It enshrines (para 87) a doctor’s 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 a broad one. The exceptions, such as the incapacitated patient, are narrow.

Thus the Supreme Court has at last completed, more or less, the long march towards a law of informed consent. The slow subsidence of Sidaway, which began with Lord Scarman’s dissenting speech, gathering pace with Pearce v United Bristol Healthcare NHST [1999] PIQR P53 and distance with Chester v Afshar [2005] 1 AC 134, has become a descent into the grave of the common law. Mourners will be few.

Nevertheless, there may be warnings on the wind for informed patients and their representatives. Lords Kerr and Reed, the authors of the Montgomery judgment, observed at para 93 that:

an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation

It may well be that healthcare providers and their legal representatives will seek in future to attribute poor outcomes to the patient’s own poor choices. Tobacco litigation, anyone…..?