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

Ruling on Consent trample on ‘Right to fair trial’

The recent landmark decision in Montgomery v Lanarkshire Health Board has re-defined legally valid, informed consent. (1) (2). Unfortunately, the ruling seems to trample on the defendants’ 'Right to a fair trial'.

The injuries due to medical negligence occurred in 1 October 1999. But a number of guidelines, books and judgments which were referenced in that ruling were published after the incident in question. It is manifestly unfair to reach a judgment on an action using material published after the event. As a non-expert, I am very perturbed and perplexed that no one seems to take notice of this glaringly obvious unfairness.

Guidelines and books published since 1999 and used in the ruling include:
1. General Medical Council booklet on ‘Good Medical Practice published in 2013.
2. GMC booklet on ‘Consent: patients and doctors making decisions together’ published in 2008.
3. Royal College of Obstetricians and Gynaecologists Guideline No 42 on Shoulder Dystocia published in 2005.
4. Principles of Medical Law, a book by Andrew Grubb, Judith Laing and Jean McHale published in 2010
5. NICE Clinical guideline ‘Caesarean section’ published in 2011.

The ruling also considered and quoted various courts judgements which were made after the incident in 1999. Examples include:

1. Jones v North West Strategic Health Authority [2010] EWHC 178 (QB)
2. Wyatt v Curtis [2003] EWCA Civ 1779
3. Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB))
4. Chester v Afshar [2005] 1 AC 134

The judgement in the Montgomery case might have been morally and ethically the right judgement but legally, one cannot expect a medical practitioner's actions to conform to guidelines and judgements published after the action.

1. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11. http://www.bailii.org/uk/cases/UKSC/2015/11.html

2. Sokol DK. Update on the UK law on consent. BMJ 2015;350:h1481–h1481. doi:10.1136/bmj.h1481

Competing interests: No competing interests

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