Is there life after Montgomery? Medico-legal implications

We had two interesting sessions on consent issues at the recent Congress in Belfast. The first comprised presentations on what the patient should be told before an operation with opinions from a senior orthopaedic surgeon and experienced negligence barrister, together with the perspective of the defence organisations. The second consisted of a great exposition on Montgomery1 and the decline of Bolam from James Badenoch, the lead/senior counsel who presented the Montgomery appeal to the Supreme Court in 2015.2 We followed this with a debate on ‘This house believes that the Montgomery judgement is a step too far’. For those of you who were unable to attend, some of the issues that were raised in those sessions are worthy of repetition. It is also worth reassessing the situation regarding Montgomery and informed consent 18 months on, to see if there has been any major fallout from the ruling in our day-to-day clinical practice. First of all, let’s be clear, there were no dissenting voices in any quarter that opposed the GMC guidelines on consent published in 2008.3 What the Montgomery judgement has done is to articulate in law what we should all already have been practicing. The concerns that many of us have are twofold: 1. That the publicity surrounding the case would lead to a large number of retrospective negligence claims when patients who developed an uncommon or rare complication of surgery retrospectively decide that they would not have consented to the surgery had they been made aware of the ‘material risk’ of the complication that occurred. 2. That the views expressed by some leading figures in the legal profession (including James Badenoch) that the Bolam principle should be removed from medical practice altogether would lead to an erosion of power/responsibility in the profession, with courts …