Informed consent and professional liability for causation of harm post Montgomery

Tracey Carver1, Dr Malcolm Smith1

1Senior Lecturer, QUT Law School, Australian Centre for Health Law Research, QUT Faculty of Law

In Montgomery v Lanarkshire Health Board [2015] AC 1430, the UK Supreme Court confirmed that, under the law of negligence and prior to obtaining a patient’s informed consent to medical treatment, information must be disclosed if it would be significant to a particular patient’s decision-making. What is required is ‘reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments’ (para 87).

In outlining this obligation, Montgomery departs from the rule in Bolam and adopts the same test for identifying ‘material risks’ as previously formulated for Australia in Rogers v Whitaker (1992) 175 CLR 479. In doing so, it focuses upon the significance of information from the patient’s (not the profession’s) perspective and confirms that ‘responsibility for determining the nature and extent’ of patient rights to autonomous decision-making ‘rests with the courts, not with the medical profession’ (para 83).

However, liability will not arise unless a patient can establish that harm in the form of a non-disclosed risk occurred, and was caused by the information’s non-provision. Commentators are therefore curious whether Montgomery’s wider approach to the duty of disclosure will be met by a more rigorous application of causation principles. The aim would be to limit liability, but in turn this could also limit patient autonomy protection.

In considering causation in Wallace v Kam (2013) 250 CLR 375, the Australian High Court did limit the scope of professional liability in this area to the occurrence of physical injury the risk of which was ‘unacceptable’ to the patient. This presentation discusses these developments in negligence liability for informed consent, and in particular whether the same approach to causation as adopted in Wallace v Kam is likely to be taken in future failure to warn cases in the UK.


Biographies:

Tracey researches in the area of health governance and regulation at QUT, with a focus upon Torts law including medical negligence, the formulation of duties of care, causation and damages assessment, together with patient consent and decision-making. She coordinates the Law School’s undergraduate Torts unit.

Malcolm teaches and researches in health law. His research focuses on the law relating to children and medical treatment and the legal and ethical issues associated with assisted reproductive technology, particularly embryo selection technologies. He has a particular interest in consent issues, including parental consent and decision-making by children, as well as clinical negligence liability.

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