Informed consent and the decision of the UK Supreme Court in ‘Montgomery’

Abstract

It is a function of the fundamental rights that the patients are enabled to make their own choices whether or not to consent to proposed treatments, according to their own priorities, in contrary to the medical point of view what constitutes the patients' best interests, provided that patients can understand and appreciate the consequences. The requirement of a valid informed consent is that patient must possess sufficient relevant information to make a reasoned choice. Apart from assessing the patient's competency and capacity to consent, doctors now requires to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatments, and of any reasonable alternative or variant treatments. The UK Supreme Court case, '<i>Montgomery</i>' emphasised that the test of adequacy of information disclosure should not be "<i>professional approval</i>" but the "<i>patient centred</i>" or "<i>prudent patient</i>" test focusing on what the reasonable patient would want and need to know. However, the law governing disclosure is not asking for impossible as cases applying Montgomery have shown that claimants might not easier claim inadequacy of information from a reasonable patient's point of view. Even though the Claimant would prove by the <i>Montgomery</i> standard that disclosure about a treatment proven harmful was inadequate, the Claimant ought to prove that the consent to the treatment would probably have been refused. The 'patient-centred' test for disclosure is in fact in line with evolving changes in societal attitudes, advances in ethical standards and the evolution of modern thinking about the doctor - patient relationship.