Observations Ethics Man

Update on the UK law on consent

BMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h1481 (Published 16 March 2015) Cite this as: BMJ 2015;350:h1481

Case based laws are turning into 'emperors new clothes'

The inherently illogical and the outright ridiculous nature of case based laws are evident in the Montgomery ruling which has redefined informed consent. (1). It might be that my legal naivety is making me overlook an obvious legal point here, but, at present, I feel like the proverbial boy who shouted "the emperor has no clothes".

Imagine a stretch of road where due to high incidence of accidents, the speed limit was reduced from 40 to 30 miles per hour ( mph). Imagine the absurdity if police try to retrospectively prosecute everyone who drove at a speed of 30 to 40 mph in the past. This is what the Montgomery ruling is threatening to do in medical negligence cases. Montgomery ruling is going to open the floodgates for compensation for past actions based on the retrospective application of a case based law by moving the goal posts on the issue of informed consent .

I am further astounded none of medical organisations and the legal professional bodies are pointing to the utter absurdity of retrospective application of case based law.

In the interest of fairness and justice, we urgently need new statutory laws which apply only to future actions .

I would not be surprised if Lord Saatchi, the sponsor of the much maligned 'Medical Innovation Bill', allowed himself a wry smile on hearing the Montgomery ruling. (2).

Perhaps Lord Saatchi needs to work on an overarching 'Medical negligence bill' covering all aspects of medical negligence rather than the limited 'Medical Innovation Bill'.

References

1. Sokol DK. Update on the UK law on consent. BMJ. 2015 Mar 16;350: h1481. doi: 10.1136/bmj.h1481.

2. Sundar S. "Saatchi bill": legal hurdles and clinical irrelevance.
BMJ. 2014 May 14;348:g3146. doi: 10.1136/bmj.g3146.

Competing interests: No competing interests

29 March 2015
Santhanam Sundar
Consultant oncologist
Nottingham University Hospital NHS Trust