‘A Guide to Consent in Clinical Negligence Post-Montgomery’ by Lauren Sutherland KC


Paperback: 978-1-911035-12-1
Published: February 2018
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For many years, the law in the UK on consent was singularly out of step with other Commonwealth jurisdictions. Now the recent decision of the Supreme Court in the case of Montgomery v Lanarkshire Health Board has clarified the position in the UK and firmly recognised the rights of the patient in this area of the law. The Supreme Court has at last recognised the right of the particular patient to make informed choices about their own health care, that information disclosure to patients should be treated differently in law from issues relating to diagnosis and treatment, and therefore that in law the professional practice test is not an appropriate test to be applied in information disclosure cases. The case has had far-reaching implications for many, and has led to the introduction of a patient-focused test to the law on consent, and a change in practice.

This book is intended equally for students, lawyers, doctors and other members of the health care professions. It sets out in full, the legal arguments advanced through the various stages of Montgomery v Lanarkshire Health Board to its final conclusion in the Supreme Court. It analyses the law on consent prior to the Supreme Court decision in Montgomery and the arguments made in Montgomery in the Scottish courts and the Supreme Court and also considers how the decision has been interpreted by the courts since. In addition there is analysis of the law on consent in other jurisdictions, particularly Australia and Canada. The Supreme Court specifically endorsed the twofold test in the Australian case of Rogers v Whitaker. It is suggested the approach found in these jurisdictions holds the key to understanding how the Supreme Court wished to develop the law on consent and the test to be applied. Those who wish to advance and develop the law in the UK should be familiar with the decisions of those jurisdictions.


Lauren Sutherland KC called to the bar in 1996 and took silk in 2016. Since being called to the bar she has specialised in clinical and professional negligence, and human rights issues in medical law. She is ranked in both Chambers UK and the Legal 500 for clinical negligence (Band 1). She has written and lectured extensively in the area of personal injury and clinical negligence. For many years, she taught ‘consent’ to dental and medical students. She was part of the legal team in the land-mark case of Montgomery v Lanarkshire Health Board [2015] UKSC 11.


Chapter 1: The Nature of Consent
1. Introduction
2. The term “informed consent”
3. Patient autonomy
4. The separation of information disclosure
5. The use of the professional practice test
6. Information on alternative therapies
7. Risks that should be disclosed
8. Rational choices
9. Where a patient asks questions
10. Patient understanding
11. The right to refuse treatment
12. Is there a duty to ensure the patient makes “the right decision”?
13. The therapeutic exception
14. Emergencies
15. Fraud or misrepresentation
16. Consent forms
17. Conclusion

Chapter 2: Sidaway – The Law on Consent Prior to Montgomery
1. Introduction
2. The background facts
3. The decision
4. Cases following the decision in Sidaway
5. Comment

Chapter 3: The Approach to Consent in Other Jurisdictions
1. Introduction
2. Australia
3. Canada
4. New Zealand
5. Ireland
6. South Africa
7. Comment

Chapter 4: Montgomery v Lanarkshire Health Board
1. The background facts
2. Evidence given to the court by the parties
3. Montgomery – The first argument
4. Montgomery in the Appeal Court in Scotland
5. Montgomery in the Supreme Court
6. Comment

Chapter 5: The Role of the General Medical Council in Montgomery
1. Introduction
2. What is the GMC?
3. GMC guidance over the years – Good Medical Practice
4. Specific GMC guidance on consent
5. The purpose of guidance issued by the GMC
6. The GMC view on patient consent
7. The GMC position on advice on risks
8. Comment

Chapter 6: Causation in Consent Cases
1. Introduction
2. Approaches to causation
3. The test of causation in the UK
4. Montgomery – causation
5. Comment

Chapter 7: Cases on Consent Since Montgomery
1. Introduction
2. Cases in 2015
3. Cases in 2016
4. Cases in 2017
5. Attempts to introduce a consent case based on Montgomery
6. Montgomery and solicitors’ negligence
7. Comment