Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

J Med Ethics. 2018 Jun;44(6):384-388. doi: 10.1136/medethics-2017-104273. Epub 2018 Mar 23.

Abstract

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers' duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

Keywords: informed consent; law; negligence; tort law.

MeSH terms

  • Australia
  • Duty to Warn / ethics
  • Duty to Warn / legislation & jurisprudence*
  • England
  • Health Services Research*
  • Humans
  • Informed Consent / ethics
  • Informed Consent / legislation & jurisprudence*
  • Malpractice / legislation & jurisprudence*
  • Personal Autonomy*
  • Risk Assessment