Intended for healthcare professionals

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

Santhanam Sundar is of course correct

It was always obvious that the point made by Santhanam Sundar about the ‘retrospective application of law’ in the Montgomery ruling, is correct.
I had noticed that as soon as I came across the media reports of Montgomery, but I decided to comment on the 'so what is the law re consent now' issues.

I suspect that the court was trying to make clear that Informed Consent is ‘in’, and that ‘medical paternalism’ is 'out', and must only be used rarely, in exceptional situations – and the court has used this as an opportunity to be clear about that.

The point about case law being more unclear than statute, is also true: but however much judges believe that the law is clear, and that professionals ‘are getting the law wrong’, it is usually only through a suitable case, that judges can make the law clear(er).

I hope that this case is not used to open the floodgates to ‘retrospective application’ except in cases where doctors veered excessively towards ‘paternalism’ (and where damage to a patient resulted) – that would be both unfair to doctors, and something of a nightmare for the NHS.

Competing interests: No competing interests

30 March 2015
Michael H Stone
Retired no clinical
None Private Individual
Coventry CV2 4HN