CCBYNC Open access
Analysis

Montgomery and informed consent: where are we now?

BMJ 2017; 357 doi: https://doi.org/10.1136/bmj.j2224 (Published 12 May 2017) Cite this as: BMJ 2017;357:j2224

Legal paternalism masquerading as patient autonomy

Society has to compensate patients harmed by medical procedures without the added burden of proving negligence. Compensation should not be limited to the tenacious few who can navigate the legal maze and win the litigation lottery. Naturally, the legal profession has a conflict of interest in opposing such “no fault “schemes.[1].

But to frame the recent change of law on informed consent, following the Montgomery case, as a clash of patient autonomy versus medical paternalism is disingenuous.[2]. If anything, it is legal paternalism masquerading as patient autonomy. The judges, based on one single case, have decided what the new legal standard is for millions of other future patients without canvassing anyone else’s views. Furthermore, this new standard applies to everyone except the legal profession. The legal profession will not automatically and retrospectively apply this new standard to past cases where “ the bolam” standard has been applied.

Natural justice demands that a professional knows in advance what is legally compliant and an assurance that their actions are not judged retrospectively by a particular patient outcome and future “case law” standards.

To avoid NHS being overwhelmed, directly and indirectly, by “malpractice” claims, the society and parliament need act urgently and enact a statutory law on medical negligence. [3].

References
1 Capstick B. The future of clinical negligence litigation? BMJ 2004;328:457–9. doi:10.1136/bmj.328.7437.457

2 Chan SW, Tulloch E, Cooper ES, et al. Montgomery and informed consent: where are we now? BMJ 2017;357:j2224. doi:10.1136/bmj.j2224

3 Jena AB, Schoemaker L, Bhattacharya J, et al. Physician spending and subsequent risk of malpractice claims: observational study. BMJ 2015;351:h5516.

Competing interests: No competing interests

20 May 2017
Santhanam Sundar
Consultant Oncologist
Nottingham University Hospital NHS Trust