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PATIENT AUTONOMY: Montgomery in action

31 March 2017  

Julian Matthews looks at recent case law on the issue of consent to medical treatment including the recent Court of Appeal decision of Webster

Legal and medical practitioners alike recognised that the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] represented a major change in the approach to be adopted when dealing with the issue of consent to medical treatment. What was not wholly apparent was how the principles set out in Montgomery would be applied in practice. There was a genuine concern that the apparently clear principles would be undermined by first instance courts who might feel that the consequence of applying the principles was in some way ‘unfair’ to medical professionals, and would try and re-introduce some elements of the ‘Bolam’ test in order to restrict liability, particularly in relation to assessing what information ought to be provided to the patient at the time any consent to treatment was taken. The Court of Appeal has now delivered its first decision in a consent case since Montgomery, which gives a real pointer to lower courts and practitioners on the extent to which the Montgomery principles will be observed, and how they should be applied in difficult cases.

Additional Info

  • Case(s) Referenced:

    Mrs A v East Kent Hospitals [2015] EWHC 1038 (QB)

    Birch v University College Hospital NHS Foundation Trust [2008] EWHC 2237 (QB)

    Chester v Afshar [2004] UKHL 41

    Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB)

    Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878

    FM v Ipswich Hospital NHS Trust [2015] EWHC 775

    Montgomery v Lanarkshire Health Board [2015] UKSC 11

    Pearce v United Bristol Healthcare NHS Trust [1998] EWCA Civ 865

    Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] UKHL 1

    Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB)

    Tasmin v Barts Health NHS Trust [2015] EWHC 3135 (QB)

    Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62