This article originally appeared in Issue 6 (September 2020).


On 11 March 2015 the UK Supreme Court gave judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11. For both medical professionals and lawyers practising in the field of clinical negligence it is a landmark judgment and the first port of call in any claim where the adequacy of patient consent to treatment is in question. The aim of this article and appended table is to quantify the impact of the Montgomery judgment on clinical negligence litigation by analysing the subject matter and outcomes of reported cases. 


In order to attempt as comprehensive analysis as possible of the reception and impact of Montgomery, the author adopted the following method in the identification of relevant cases. First, a Westlaw search of “All cases citing” returned 85 results. A search of cases Lawtel for the terms “Montgomery v Lanarkshire” returned 25 results, all of which were already captured by the Westlaw results. A search of Bailii’s Case Law Search page returned 72 results, of which all but 5 were already captured by Westlaw. Finally, a LexisNexis search of “Find Related Cases” returned 122 results (this number was artificially inflated by multiple reports of the same case and the inclusion of case commentaries); this added a further 4 cases. The starting ‘pool’ was therefore 94 reports. 25 of the 94 reports concerned jurisdictions outside England & Wales (Scotland, Northern Ireland, Singapore and ECtHR variously), which are excluded from further consideration. 

Notwithstanding the significant number of case reports, it is apparent that not all decided cases find their way into these online databases; for example, the first instance (County Court) decision in Duce is not available in these resources. It seems likely that there are other decided cases, particularly at County Court level, also in this category. 

Of particular interest to the author were examples of the ‘focal case’, defined as where there is an issue before the court in a clinical negligence action as to the necessary content of advice given to a patient about treatment options. Identification of these ‘focal cases’ requires a line to be drawn; for example, cases where the judge has noted reliance by one of the parties on Montgomery but has considered it to have no bearing on the issues would, in the judgment of the author, be excluded. In so doing, the author hopes to bring focus on those instances where the Montgomery approach to adequacy of consent was truly in play. Typically this involves a determination by the court as to whether the advice given (the factual substance of which may have been disputed) was adequate and, if not, whether the claimant suffered loss as a result. One case, Metcalf, extends this pattern slightly in that the court was required to adjudicate a dispute as to the content of a hypothetical discussion of treatment options that would have taken place had diagnosis been made. 

The result is a cohort of 36 reports of cases decided in England & Wales between 11 March 2015 and 8 April 2020; in fact this represents 34 distinct actions since two cases (Diamond and Shaw) are reported at first instance and on appeal. 

Impact of Montgomery in numbers – the focal cases 

The table below sets out the 36 reports of ‘focal cases’ (as defined above). Please note that in summarising the result according to whether breach of duty and causation are established, the attention is on the consent issue; some cases may have failed on the consent arguments but succeeded on other grounds (e.g. Richardson) or vice versa (e.g. Thefaut). Some thoughts on what is shown: 

The stream of litigation in this area is relatively steady with reports in the calendar years 2015 to 2020 numbering 8, 5, 7, 6, 8 and 2 respectively (the last of these being not only a ‘short year’ to April 2020 but also subject to the effects on the judicial process of Covid-19).

  • There is a reasonable spread of areas of clinical practice represented, perhaps reflecting a cross-section of clinical negligence litigation generally; 7 cases came from the field of obstetrics (as of course did Montgomery itself), 4 from neurosurgery/spinal surgery, 3 general surgery, 3 orthopaedic surgery and the rest making up the numbers. Perhaps notably, 2 cases (Correia and Keane) involved the more esoteric area of podiatric surgery leading to chronic pain.
  • Issues arising from the proper approach to obtaining patient consent have come before the Court of Appeal on 6 occasions (Worrall, Webster, Correia, Shaw, Duce, Diamond). The last four of those occasions included consideration (and rejection) of the existence of a free-standing action for breach of patient autonomy, independent of the need to demonstrate causation of injury.
  • Of the 29 reports of first instance decisions1, only 2 are reports of County Court cases, which likely reflects the sporadic inclusion of reports below High Court level on the usual online databases.
  • In terms of outcomes, the prospects of establishing breach of duty are finely balanced in that of the 34 distinct actions, breach was established in 18.
  • Causation is a significant hurdle with 5 distinct cases (out of the 18 that get that far) failing at this stage.
  • 16 of the 34 cases failed on breach. Of those 16, in 10 cases (A v East Kent, Connolly, Grimstone, MC, Holdsworth, Correia, Duce, Keane, Richardson and Ollosson2) the court went on to find (or upheld a finding) that even if warned/advised in the terms for which the claimant contended, this would not have made any difference i.e. causation would not have been established in any event. Of the remaining 6 cases, in 5 (Tasmin, Bayley, Cameron, ML and Mordel) causation is not separately considered, having dismissed the case on breach grounds. Worrall is the exception in that whilst a judge’s finding in favour of the claimant on breach was overturned, the Court of Appeal declined to disturb the finding that the claimant would not have proceeded surgery if given what she contended was the appropriate advice.


Trying to discern trends in litigation by reference to reported cases is perhaps like trying to work out what is going on in a crowded room by peering through the keyhole; the vast majority of cases brought (even if they get as far as the issue of proceedings) are settled long before they are exposed to the public gaze through a published judgment. In addition, there are challenges in capturing all relevant decisions, particularly those at County Court level. Nonetheless, the reported cases suggest that this continues to be a well-litigated area with sufficient uncertainty of outcome for it to remain so.

1 – Of the 30 High Court decisions, Price is the only example of a decision on an appeal from the County Court.  

2 – In fact in Ollosson the judge states at [158] “It is not sensible to consider causation in the alternative since, by definition on my findings, Mr Ollosson did give properly informed consent” before setting out three reasons why the claim would have failed on causation.

NoCase nameCitationDateJudgeCourtArea of clinical practiceC wins on breach & causationC wins on breach, loses on causationC loses on breach
1FM v Ipswich Hospital NHS Trust[2015] EWHC 775 (QB)27/03/2015HHJ McKennaHCObstetrics  
2A v East Kent Hospitals University NHS Foundation Trust[2015] EWHC 1038 (QB)20/04/2015Dingemans JHCFetal medicine  
3Spencer v Hillingdon Hospital NHS Trust[2015] EWHC 1058 (QB)21/04/2015HHJ Collender QCHCGeneral Surgery  
4Connolly v Croydon Health Services NHS Trust[2015] EWHC 1339 (QB)15/05/2015HHJ Collender QCHCCardiology  
5Barrett v Sandwell and West Birmingham Hospitals NHS Trust[2015] EWHC 2627 (QB)18/09/2015Blair JHCOphthalmic Surgery  
6Shaw v Kovac[2015] EWHC 3335 (QB)28/10/2015HHJ PlattsHCCardiac Surgery  
7Tasmin v Barts Health NHS Trust[2015] EWHC 3135 (QB)30/10/2015Jay JHCObstetrics  
8Grimstone v Epsom and St Helier University Hospitals NHS Trust[2015] EWHC 3756 (QB)23/12/2015McGowan JHCOrthopaedic surgery  
9Lunn v Kanagaratnam[2016] EWHC 93 (QB)22/01/2016HHJ McKennaHCCardiology  
10MC v Birmingham Women’s NHS Foundation Trust[2016] EWHC 1334 (QB)08/06/2016Turner JHCObstetrics  
11Crossman v St George’s Healthcare NHS Trust[2016] EWHC 2878 (QB)25/11/2016HHJ Peter Hughes QCHCNeurosurgery / Spinal surgery  
12Worrall v Antoniadou [2016] EWCA Civ 121906/12/2016Tomlinson LJ
David Richards LJ
CABreast Surgery  
13Holdsworth v Luton and Dunstable University Hospital NHS Foundation Trust[2016] EWHC 3347 (QB)21/12/2016HHJ FreedmanHCOrthopaedic surgery  
14Webster v Burton Hospitals NHS Foundation Trust[2017] EWCA Civ 6213/02/2017Jackson LJ
Simon LJ
Flaux LJ
15Thefaut v Johnston[2017] EWHC 497 (QB)14/03/2017Green JHCNeurosurgery / Spinal surgery  
16Correia v University Hospital of North Staffordshire NHS Trust[2017] EWCA Civ 35612/05/2017Black LJ
Simon LJ
CAPodiatric Surgery  
17Diamond v Royal Devon and Exeter NHS Foundation Trust[2017] EWHC 1495 (QB)23/06/2017HHJ FreedmanHCGeneral Surgery  
18Shaw v Kovac[2017] EWCA Civ 102818/07/2017Davis LJ
Underhill LJ
Burnett LJ
CACardiac Surgery  
19Gallardo v Imperial College Healthcare NHS Trust[2017] EWHC 3147 (QB)08/12/2017HHJ Peter Hughes QCHCGeneral Surgery  
20Bayley v George Eliot Hospital NHS Trust[2017] EWHC 3398 (QB)21/12/2017HHJ WorsterHCVascular Surgery  
21Cameron v Ipswich Hospital NHS Trust[2018] EWHC 38 (QB)18/01/2018HHJ Forster QCHCNeurosurgery / spinal surgery  
22Hassell v Hillingdon Hospitals NHS Foundation Trust[2018] EWHC 164 (QB)06/02/2018Dingemans JHCNeurosurgery / Spinal surgery  
23Duce v Worcestershire Acute Hospitals NHS Trust[2018] EWCA Civ 130707/06/2018Hamblen LJ
Newey LJ
Leggatt LJ
CAGynaecological surgery  
24ML (A Child) v Guy’s and St. Thomas’ National Healthcare Foundation Trust[2018] EWHC 2010 (QB)31/07/2018Martin Spencer JHCObstetrics  
25Keane v Tollafield[2018] 8 WLUK 30612/10/2018HHJ WilliamsCCPodiatric Surgery  
26Richardson v Newcastle upon Tyne Hospitals Foundation Trust[2018] 12 WLUK 55619/12/2018Recorder Cox QCCCNeurosurgery and Maxillofacial surgery  
27Kennedy v Frankel[2019] EWHC 106 (QB)25/01/2019Yip JHCNeurology  
28Keh v Homerton University Hospitals NHS Foundation Trust[2019] EWHC 548 (QB)08/03/2019Stewart JHCObstetrics  
29Ollosson v Lee[2019] EWHC 784 (QB)29/03/2019Stewart JHCGeneral Practice (though involving vasectomy)  
30Diamond v Royal Devon and Exeter NHS Foundation Trust[2019] EWCA Civ 58508/04/2019McCombe LJ
Floyd LJ
Nicola Davies LJ
CAGeneral Surgery  
31Mills v Oxford University Hospitals NHS Trust[2019] EWHC 936 (QB)12/04/2019Karen Steyn QCHCNeurosurgery  
32Price v Cwm Taf University Health Board[2019] EWHC 938 (QB)15/04/2019Birss JHCOrthopaedic surgery  
33Mordel v Royal Berkshire NHS Foundation Trust[2019] EWHC 2591 (QB)08/10/2019Jay JHCSonography / Fetal Medicine  
34Metcalf v Royal Devon and Exeter NHS Foundation Trust[2019] EWHC 3549 (QB)19/12/2019David Pittaway QCHCOncology / Thoracic surgery  
35Pepper v Royal Free London NHS Foundation Trust [2020] EWHC 310 (QB)25/02/2020Geoffrey Tattersall QCHCHPB Surgery  
36NKX v Barts Health NHS Trust[2020] EWHC 828 (QB)08/04/2020Simeon Maskrey QCHCObstetrics  
C wins on breach & causationC wins on breach, loses on causationC loses on breach