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

Response to Dr Sundar; No Unfairness

With reference to post-1999 case law and guidance, Dr Sundar says (29 March 2015), “I am very perturbed and perplexed that no one seems to take notice of this glaringly obvious unfairness”. The Supreme Court [1] dealt with Montgomery’s appeal arising from Inner Court’s decision [2] in 2013, on a point of law rather than a re-hearing of 1999 trial; no fresh witness evidence was heard. Thus, it is entirely appropriate and fair to analyse post-1999 case law & guidance which Dr Sundar has identified. The Supreme Court focused on the ground of appeal that Court of Session’s decision was primarily based on expert evidence of medical practice, following the approach laid down by the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 and as invited, went on to depart from the Sidaway judgment which relied on the Bolam test. Hence, there is no unfairness or breach of Article 6, ECHR/Human Rights Act. Dr Sundar will note, pre-1999 cases too were referred to by the Supreme Court.
If there is any injustice here, then the most obvious one is the fact that it had taken nearly sixteen years for Montgomery to achieve justice following a catastrophic value judgement of her treating obstetrician.

Competing interests: No competing interests

05 April 2015
Jay Ilangaratne
East Yorkshire