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The Supreme Court’s Decision in Montgomery – How Far Have We Strayed From Sidaway and the Profession

The area of informed consent has long been an area of great debate. To what extent should a patient be informed of the risks in a procedure? To what extent should doctors be trusted to make decisions regarding risks on behalf of their patients? Can we strike a balance between the two concepts? This paper explores cases central to the great debate, Sidaway v Board of Governors of the Bethlem Royal Hospital and Montgomery v Lanarkshire Health Board. Analysing the tests used in the past, and the test that has more recently been adopted, this paper considers the extent to which risk disclosure is now necessary in the modern day. Further, it focuses on the mind-set of the judiciary behind enforcing such a test, particularly, the judiciary’s focus on a patient-centric test, more consistent with automatism and patient choice, than the previously paternalistic “doctor knows best” approach.

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