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Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?
  1. Malcolm K Smith,
  2. Tracey Carver
  1. Australian Centre for Health Law Research, School of Law, Queensland University of Technology, Brisbane, Queensland, Australia
  1. Correspondence to Dr Malcolm K Smith, Australian Centre for Health Law Research, School of Law, Queensland University of Technology, Brisbane, Queensland 4001, Australia; mk.smith{at}qut.edu.au

Abstract

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

  • informed consent
  • negligence
  • law
  • tort law

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Footnotes

  • Contributors Both authors have contributed to the research undertaken for the writing of this paper, as well as the reasoning, analysis and arguments.

  • Funding This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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