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Montgomery: UKSC changes law on informed consent, Andrew Smith KC for intervener (GMC)

This case rewrites the law on what is known occasionally as “informed” [sic] consent in medical treatment. A short summary of the decision is attached, but for any person practising in the field of clinical negligence it is a case of required reading. Indeed, issues are now being raised about whether cases which previously were litigated and failed can be re opened.

The cases of Bolitho and of Sidaway have been overruled and apparently with retrospective effect. It is now (and indeed was) a requirement that doctors should ensure that they enter into a discussion with patients about all treatment options, tested by what a reasonable patient in the position of the particular patient might reasonably wish to know. The shift from doctor based decision making to patient decision making is seismic and will have a profound effect on practice of medicine and law.

The test is not whether a doctor was following reasonable medical practice in failing to discuss options and warn of the risk. The issue is one of human right and for the court, not doctors, to determine.

The judgment substantially relies upon the submissions of the GMC (for whom Andrew Smith KC of Crown Office Chambers appeared as interveners).

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