A Guide to Consent in Clinical Negligence Post-Montgomery
For many years, the law in the UK on consent was singularly out of step with other Commonwealth jurisdictions. Now the recent decision of the Supreme Court in the case of Montgomery v Lanarkshire Health Board has clarified the position in the UK and firmly recognised the rights of the patient in this area of the law.
The Supreme Court has at last recognised the right of the particular patient to make informed choices about their own health care, that information disclosure to patients should be treated differently in law from issues relating to diagnosis and treatment, and therefore that in law the professional practice test is not an appropriate test to be applied in information disclosure cases.
The case has had far-reaching implications for many, and has led to the introduction of a patient-focused test to the law on consent, and a change in practice.
This book is intended equally for students, lawyers, doctors and other members of the health care professions. It sets out in full, the legal arguments advanced through the various stages of Montgomery v Lanarkshire Health Board to its final conclusion in the Supreme Court.
It analyses the law on consent prior to the Supreme Court decision in Montgomery and the arguments made in Montgomery in the Scottish courts and the Supreme Court and also considers how the decision has been interpreted by the courts since. In addition there is analysis of the law on consent in other jurisdictions, particularly Australia and Canada.
The Supreme Court specifically endorsed the twofold test in the Australian case of Rogers v Whitaker. It is suggested the approach found in these jurisdictions holds the key to understanding how the Supreme Court wished to develop the law on consent and the test to be applied. Those who wish to advance and develop the law in the UK should be familiar with the decisions of those jurisdictions.
Contents: Chapter 1: The Nature of Consent1. Introduction2. The term “informed consent”3. Patient autonomy4. The separation of information disclosure5. The use of the professional practice test6. Information on alternative therapies7. Risks that should be disclosed8. Rational choices9. Where a patient asks questions10. Patient understanding11. The right to refuse treatment12. Is there a duty to ensure the patient makes “the right decision”?13. The therapeutic exception14. Emergencies15. Fraud or misrepresentation16. Consent forms17. ConclusionChapter 2: Sidaway – The Law on Consent Prior to Montgomery1. Introduction2. The background facts3. The decision4. Cases following the decision in Sidaway5. CommentChapter 3: The Approach to Consent in Other Jurisdictions1. Introduction2. Australia3. Canada4. New Zealand5. Ireland6. South Africa7. CommentChapter 4: Montgomery v Lanarkshire Health Board1. The background facts2. Evidence given to the court by the parties3. Montgomery – The first argument4. Montgomery in the Appeal Court in Scotland5. Montgomery in the Supreme Court6. CommentChapter 5: The Role of the General Medical Council in Montgomery1. Introduction2. What is the GMC?3. GMC guidance over the years – Good Medical Practice4. Specific GMC guidance on consent5. The purpose of guidance issued by the GMC6. The GMC view on patient consent7. The GMC position on advice on risks8. CommentChapter 6: Causation in Consent Cases1. Introduction2. Approaches to causation3. The test of causation in the UK4. Montgomery – causation5. CommentChapter 7: Cases on Consent Since Montgomery1. Introduction2. Cases in 20153. Cases in 20164. Cases in 20175. Attempts to introduce a consent case based on Montgomery6. Montgomery and solicitors’ negligence7. Comment
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