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Valid Consent: The Role of the Medical Expert - Paul Sankey, Enable Law

09/02/18. What is the medical expert's role in reporting on consent to treatment? With the change in the law following Montgomery v Lanarkshire Health Board in 2015 that role has also changed.

Medical Consent: The Law

Prior to the Montgomery decision, the courts applied the Bolam test to medical advice. The test of whether advice was adequate was whether it accorded with the practice of a responsible body of doctors practicing that discipline. Advice by an orthopaedic surgeon was adequate if a responsible body of orthopaedic surgeons would have said the same. Similarly advice by a GP was adequate if a responsible body of GPs would have given similar advice. Consent based on that advice was valid.

In Montgomery, the Supreme Court in rejected the Bolam test in relation to advice (as opposed to diagnosis and treatment). In broad terms, advice is adequate if it covers what a reasonable patient in this patient's shoes would want to know. The doctor's duty is to take reasonable care to ensure the patient knows the material risks of any recommended or reasonable alternative treatment. A risk is material if, in the circumstances of a particular case...

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