Written by Daniel Sokol
barrister and medical ethicist at 12 King’s Bench Walk, Temple, London
This article was first published in the Personal Injury Brief Update Law Journal on 12th October 2015 (http://www.pibriefupdate.com)
Following the landmark case of Montgomery v Lanarkshire Health Board  UKSC 11, I have been instructed on several cases of alleged failure to obtain valid consent.
At present, consultants in the relevant specialty are asked to produce expert reports on the quality of the consent process. The reports are, generally, of dubious value.
Medical expertise is not ethical expertise
The doctors’ expertise in matters of diagnosis, treatment, or causation – such as whether a GP should have referred a patient to a specialist sooner or the likelihood of a patient developing multiple sclerosis – does not necessarily translate to issues of medical ethics. Many experts, now senior consultants, were trained at a time when there was less fuss about consent. Their own practice on consent may fall short of the new legal standard.
In several cases, the medical experts appeared confused by the new test of materiality set out in Montgomery (i.e., a doctor must 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) and still resorted to the obsolete Bolam standard (i.e., conduct supported by a responsible body of medical opinion). They commented on what happens ‘in practice’ and concluded, wrongly, that since it happens commonly there is no breach of duty.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.