Intended for healthcare professionals

Observations Ethics Man

Update on the UK law on consent

BMJ 2015; 350 doi: (Published 16 March 2015) Cite this as: BMJ 2015;350:h1481

Catastrophic Value Judgment and Failure of Scottish Courts

The central legal issue was a failure to disclose a substantial obstetric risk. Both the Outer and Inner House, Court of Session in Scotland applied the revised Bolam test as per Bolitho[2] but accepted that non-disclosure of a 9-10% risk (which “Dr McLellan accepted that this was a high risk”[1]) was consistent with a reasonable body of medical opinion and it could withstand logical scrutiny. It appears, the Scottish Law Lords did not attach much weight to commonsense or patient autonomy either, when they accepted Dr McLellan’s reasoning that “most women will actually say, 'I'd rather have a caesarean section"; how could such a catastrophic value judgment withstand logical scrutiny as per Bolitho? How did Scottish Law Lords get it so wrong twice in 2010 and 2013 respectively? Yet, the Supreme Court delivered their judgment with customary politeness and eloquence without highlighting this abject failure of the Court of Session but makes a rather convenient attempt to blame the inappropriateness of the Bolam test in cases of consent. Even if the Bolam test is outdated in relation to consent, this is clearly a case where Scottish Law Lords repeatedly failed to apply the well known Bolam-Bolitho test properly and thus, letting down Nadine Montgomery for over a decade. Arguably, Montgomery judgment exposes the inability of the Court of Session to think outside the box and their tendency to pander to medical paternalism.
[2] Bolitho v City and Hackney Health Authority [1998] AC 232

Competing interests: No competing interests

27 March 2015
Jay Ilangaratne
East Yorkshire