Clark Hobson, ‘No (,) More Bolam Please: Montgomery v Lanarkshire Health Board

Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient’s position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court’s portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test’s future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee‘s relevance to risk disclosure, this case is likely to remain relevant.

Clark Hobson, No (,) More Bolam Please: Montgomery v Lanarkshire Health Board. Modern Law Review, Volume 79, Issue 3, pages 488–503, May 2016. Article first published online: 26 APR 2016. DOI: 10.1111/1468-2230.12194.

First posted 2016-04-27 06:29:59

Leave a Reply