This talk discusses the facts and findings of this seminal case. The seminar will cover the following:
How the law has changed
Why the law needed to be changed
What this huge change will mean for clinical negligence lawyers going forward
The talk is presented by John-Paul Swoboda and Rory Badenoch barristers who specialise in clinical negligence work and who practise from 12 Kings Bench Walk (Chambers and Partners Personal Injury and Clinical Negligence Set of the Year 2014).
In a landmark case the Supreme Court has ruled that the Bolam test will no longer govern the liability of doctors in the so called “informed consent” cases. It is replaced by a “patient- centred” test suited to modern ideas of individual autonomy and human rights.
The decision is of huge and vital importance to the medical profession and to all lawyers who undertake clinical negligence work.
The case of Montgomery v Lanarkshire Health Board,  UKSC 11, was heard by a panel of seven Supreme Court Justices, who delivered their unanimous decision in March 2015.
It concerns all cases of a bad outcome from a known risk of treatment about which the patient was not told before agreeing to submit to it.
The application of Bolam meant that a doctor is not negligent if his/her choice to withhold information accords with that of a reasonable body of medical opinion, even if it is condemned by a substantial majority of others, which is the “doctor knows best” principle, subject only to the Bolitho proviso that the choice must withstand logical analysis.
The argument was that even if Bolam should still apply to alleged mistakes in diagnosis and treatment (which is nowadays much questioned but did not arise for decision), it has no place in the matter of patient consent. The rationale is the concept of unfettered patient autonomy (the individual’s right to accept or to refuse treatment regardless of the doctor’s views of its benefit), which is now demanded by the population at large, and indeed by the GMC in its published guidelines.