Analysing Consent Failures in Surgical Practice: Montgomery Compliance in Records

The Clinical Record as Evidentiary Foundation

In clinical negligence litigation, the standard of informed consent is anchored by the Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The core requirement is that a clinician must take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. For legal practitioners evaluating the viability of a claim, the clinical record serves as the primary evidentiary window into whether this duty was fulfilled during the pre-operative process.

In medico-legal casework, the absence of a detailed contemporary note is often a central challenge in evaluating an alleged breach of consent. When a claimant alleges that specific risks—such as nerve injury, infection rates, or failure of a prosthetic implant—were not discussed, the court looks for evidence that the surgeon engaged in a dialogue tailored to the patient’s specific circumstances. A generic, tick-box consent form may not be sufficient to demonstrate Montgomery compliance. Experts are often tasked with performing a detailed analysis of surgical documentation to establish whether the clinical note reflects an exchange of information or an administrative formality.

Clinical negligence claims often hinge on whether the risks were ‘material’ in the context of the individual patient’s life, occupation, or pre-existing health status. For example, a risk of sensory deficit may be highly material to a musician or a surgeon, whereas it might be less central to another patient. The record must demonstrate that the surgeon identified the patient’s specific concerns and balanced these against the clinical necessity of the procedure.

Legal Frameworks for Establishing Breach

The assessment of breach of duty in consent cases requires a departure from the Bolam-style deference to professional practice. Under Montgomery, the test is not what a responsible body of medical opinion would have disclosed, but what a reasonable person in the patient’s position would be likely to attach significance to. When a claim proceeds to litigation, the instructing solicitor must determine whether the expert witness can support the assertion that a material risk was withheld or insufficiently explained.

• Bolitho v City and Hackney HA [1998]: This decision remains relevant for evaluating whether a clinician’s decision-making process was logical and defensible in the context of the clinical data available at the time.
• Chester v Afshar [2004]: This remains a key authority regarding the causation-consent interface, particularly in cases involving elective surgery where the claimant argues that, had they been properly warned, they would have declined or postponed the procedure.
• CPR Part 35: The overriding duty of the expert is to the court, as set out in CPR 35.3. Experts are required to clarify where records are ambiguous and whether clinical practice deviated from the standards set out by professional regulatory bodies.

The Role of Multi-Disciplinary Expertise

Surgical claims often involve multiple clinical considerations. A procedure may involve multiple specialties, such as an orthopaedic surgeon performing spinal instrumentation, an anaesthetist managing sedation, and a physician assessing perioperative risk for a patient with pre-existing ischaemic heart disease. In such complex matters, the instruction of a single, non-specialised expert can lead to gaps in the evidential chain.

Where an alleged consent failure is compounded by a secondary complication—such as a failure to appreciate a cardiac ‘red flag’ on a pre-operative ECG—having the ability to secure opinions from both a surgeon and a cardiologist ensures that the evidence reflects a comprehensive understanding of the patient’s entire perioperative journey. This approach addresses the complexities often encountered when experts in disparate fields reconcile their findings during a meeting mandated by CPR 35.12. Note that if a single joint expert is appointed under CPR 35.7, they are instructed pursuant to CPR 35.8, and their role is distinct from the joint statement process applicable when parties instruct separate experts.

Practical Guidance for Solicitors

When preparing instructions for a breach of duty report, solicitors should ensure the following clinical materials are provided:

• Full, chronologically organised clinical notes from the initial consultation through to the post-operative discharge summary.
• The formal consent form, including any supplementary information leaflets provided to the patient.
• Pre-operative correspondence, including referral letters, which often contain crucial information about the patient’s baseline health and priorities.
• Imaging reports and relevant physiological scores (e.g., risk stratification scores) that informed the surgical decision-making process.

If the records are silent on a discussion, experts assess whether the omission is consistent with established clinical practices. The expert must distinguish between what was documented and what may have occurred based on the standard of care. Identifying the correct subspecialty at the outset—such as a specialist in orthopaedics for trauma cases or a vascular surgeon for aortic intervention—is essential to provide the court with the necessary clinical nuance to apply the Montgomery test accurately.