Consent and Record-Keeping Failures: Avoiding Reasoning Errors in Breach of Duty Claims

The Montgomery Framework and Information Disclosure

Since the judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11, the legal test for consent has shifted focus from the Bolam standard of what a reasonable body of medical opinion would disclose, to what a reasonable person in the patient’s position would likely attach significance to, or what the particular patient has made clear they would attach significance to. This places emphasis on the medical record to substantiate the scope of the pre-operative discussion.

When assessing whether a failure to obtain informed consent occurred, practitioners must distinguish between clinical capacity and the quality of the information provided. Where a patient lacks the necessary legal standing, evaluating mental capacity during the consent process requires a multidisciplinary perspective, particularly when underlying psychiatric or neurological conditions influence decision-making. Expert witnesses instructed to address breach of duty should evaluate whether the documented consent process aligns with the patient’s specific risk profile, rather than relying on generic entries which may be insufficient to demonstrate compliance with the Montgomery standard.

Clinical Record-Keeping as Evidence of Breach

Deficiencies in documentation are frequently the focal point of litigation. In the absence of detailed contemporaneous notes, the court may rely on competing witness evidence, where the claimant’s recollection of discussions may contrast with the clinician’s standard practice. Under CPR Part 35.3, the expert witness has an overriding duty to the court to provide independent, objective evidence. When an expert reviews records, they must distinguish between what is factually recorded and what is inferred from an absence of entries.

A common reasoning error is assuming that an adverse outcome, documented in the records, implies an antecedent breach of the duty of care. The expert’s function under the Bolam/Bolitho framework is to determine whether the clinical decision-making was consistent with a responsible body of medical professionals, and whether that decision is capable of withstanding logical analysis. Records that are illegible, incomplete, or lack specific reference to the material risks discussed present a significant challenge in meeting the evidential burden.

The Role of the Expert in Multi-Specialty Cases

Clinical negligence claims often involve complex, multi-system injuries where the consent issue may relate to a specific surgical complication, while the breach itself may span secondary care delivery. For example, a case involving an orthopaedic procedure that results in an unexpected neurological deficit necessitates expertise in both surgical consent standards and neurological post-operative management. Instructing a single expert whose subspecialty does not cover the breadth of the alleged harm can lead to gaps in the breach analysis.

By matching consultants across specialties—such as linking surgical experts with anaesthetists or intensivists—litigation teams can ensure that the breach of duty analysis is coherent, identifying where documentation failures in one department may have impacted the clinical pathway in another.

Procedural Considerations and Evidence Strategy

Solicitors should ensure the scope of the report is defined under CPR Part 35.10. A screening or merits report is often an appropriate starting point to identify whether the documented consent process is fundamentally flawed or whether the claim is focused on an unfortunate but non-negligent outcome. If the claim proceeds to the exchange of expert reports, the court may direct experts to engage in discussions under CPR Part 35.12 to narrow the issues. It is essential that these joint statements reflect the experts’ independent clinical reasoning rather than a reiteration of the instructing parties’ positions. Where a court directs a single joint expert under CPR 35.7, they are instructed according to the provisions in CPR 35.8.

• Proportionate Records Review: Prioritise contemporaneous notes over secondary correspondence when assessing the timing and content of consent discussions.
• Subspecialty Alignment: Ensure the instructed expert’s subspecialty is aligned with the specific clinical activity in question; a general surgeon may not be the appropriate expert for consent involving highly specialised spinal instrumentation.
• Materiality Assessment: Focus instructions on the materiality of the risks the claimant alleges were not discussed, referencing the patient’s unique personal circumstances where applicable.
• Distinction in Duty: Distinguish between an allegation of negligent surgical technique (technical breach) and a failure to warn of inherent procedure-specific risks (consent breach).