What is the Montgomery standard for informed consent?
Before Montgomery, the standard for consent was governed by Bolam — whether a responsible body of doctors would have disclosed the risk. The Supreme Court moved away from that for consent, holding that a clinician must take reasonable care to ensure the patient is aware of any material risk involved in a proposed treatment and of any reasonable alternative or variant treatments. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the clinician is or should reasonably be aware that this particular patient would.
What are common informed consent claims?
- Surgical risks not disclosed — nerve damage, chronic pain, loss of function, need for revision surgery
- Medication risks not disclosed — including serious side effects and monitoring requirements
- Alternative treatments not offered — including the option of no treatment
- Obstetric consent — mode of delivery, risks of vaginal delivery vs caesarean, shoulder dystocia risk
- Cosmetic surgery — heightened duty of disclosure given the elective nature
What do you need to prove in an informed consent claim?
- The risk was material — either a reasonable person would attach significance to it, or the clinician should have known you would.
- You weren't warned — no adequate discussion took place, or the disclosure was inadequate.
- Causation — with proper warning you would have declined the treatment, delayed it, or chosen a reasonable alternative.
- Damage — the undisclosed risk in fact materialised and caused you harm.
You may also be interested in
Frequently asked questions
What does 'informed consent' mean in law?
Since Montgomery v Lanarkshire Health Board [2015] UKSC 11, a clinician must warn a patient of any material risk of a proposed treatment. A risk is material if a reasonable person in the patient's position would attach significance to it, or if the clinician knows this particular patient would.
Can I claim if a risk of surgery materialised and I wasn't warned about it?
Yes — if the risk was material under the Montgomery standard, you weren't warned, and you would not have proceeded with the treatment (or would have chosen a different option) had you been warned, a claim may succeed.
Does a signed consent form defeat my claim?
No. A signed form is evidence of consent but does not prove that the discussion required by Montgomery took place. What matters is whether material risks and reasonable alternatives were actually explained.
What if I would have gone ahead anyway?
The claim will fail on causation. You must show that with proper warning of the risk, you would either not have consented to that treatment at that time, or would have chosen a different, lower-risk option.
Related guides
- Surgical negligence
- Hip replacement negligence
- Caesarean section negligence
- Private hospital negligence
- How much compensation
Sources & further reading
Primary statute, case law and regulator guidance referenced in this article.
- Montgomery v Lanarkshire Health Board [2015] UKSC 11 — Supreme Court
- GMC — Decision making and consent — General Medical Council