UK law on consent finally embraces the prudent patient standard

The UK Supreme Court’s decision in the Montgomery case is a landmark judgment, establishing beyond doubt the court’s commitment to protecting patients’ right to self determination. 1 The judgment concerns Nadine Montgomery, a woman with diabetes whose son was born with serious and permanent disabilities after a shoulder dystocia during delivery. Montgomery’s obstetrician had not warned her of the risk of shoulder dystocia during vaginal delivery or discussed alternatives such as caesarean section. The court held that the doctor should have done both: doctors have a duty to ensure that each patient is aware of any material risks of any recommended treatment and of any reasonable alternative treatments. The test of materiality is whether a reasonable person in that particular patient’s position would be likely to attach importance to the risk, or whether the doctor is—or should reasonably be—aware that that particular patient would be likely to attach importance to it. The message for clinicians is: know your patient and provide tailored information.

The patient must be given sufficient information, but what constitutes sufficient? Two standards of disclosure have been employed: the professional standard (the court relies on medical …