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  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  “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.
|No||Case name||Citation||Date||Judge||Court||Area of clinical practice||C wins on breach & causation||C wins on breach, loses on causation||C loses on breach|
|1||FM v Ipswich Hospital NHS Trust|| EWHC 775 (QB)||27/03/2015||HHJ McKenna||HC||Obstetrics||•|
|2||A v East Kent Hospitals University NHS Foundation Trust|| EWHC 1038 (QB)||20/04/2015||Dingemans J||HC||Fetal medicine||•|
|3||Spencer v Hillingdon Hospital NHS Trust|| EWHC 1058 (QB)||21/04/2015||HHJ Collender QC||HC||General Surgery||•|
|4||Connolly v Croydon Health Services NHS Trust|| EWHC 1339 (QB)||15/05/2015||HHJ Collender QC||HC||Cardiology||•|
|5||Barrett v Sandwell and West Birmingham Hospitals NHS Trust|| EWHC 2627 (QB)||18/09/2015||Blair J||HC||Ophthalmic Surgery||•|
|6||Shaw v Kovac|| EWHC 3335 (QB)||28/10/2015||HHJ Platts||HC||Cardiac Surgery||•|
|7||Tasmin v Barts Health NHS Trust|| EWHC 3135 (QB)||30/10/2015||Jay J||HC||Obstetrics||•|
|8||Grimstone v Epsom and St Helier University Hospitals NHS Trust|| EWHC 3756 (QB)||23/12/2015||McGowan J||HC||Orthopaedic surgery||•|
|9||Lunn v Kanagaratnam|| EWHC 93 (QB)||22/01/2016||HHJ McKenna||HC||Cardiology||•|
|10||MC v Birmingham Women’s NHS Foundation Trust|| EWHC 1334 (QB)||08/06/2016||Turner J||HC||Obstetrics||•|
|11||Crossman v St George’s Healthcare NHS Trust|| EWHC 2878 (QB)||25/11/2016||HHJ Peter Hughes QC||HC||Neurosurgery / Spinal surgery||•|
|12||Worrall v Antoniadou|| EWCA Civ 1219||06/12/2016||Tomlinson LJ|
David Richards LJ
|13||Holdsworth v Luton and Dunstable University Hospital NHS Foundation Trust|| EWHC 3347 (QB)||21/12/2016||HHJ Freedman||HC||Orthopaedic surgery||•|
|14||Webster v Burton Hospitals NHS Foundation Trust|| EWCA Civ 62||13/02/2017||Jackson LJ|
|15||Thefaut v Johnston|| EWHC 497 (QB)||14/03/2017||Green J||HC||Neurosurgery / Spinal surgery||•|
|16||Correia v University Hospital of North Staffordshire NHS Trust|| EWCA Civ 356||12/05/2017||Black LJ|
|17||Diamond v Royal Devon and Exeter NHS Foundation Trust|| EWHC 1495 (QB)||23/06/2017||HHJ Freedman||HC||General Surgery||•|
|18||Shaw v Kovac|| EWCA Civ 1028||18/07/2017||Davis LJ|
|19||Gallardo v Imperial College Healthcare NHS Trust|| EWHC 3147 (QB)||08/12/2017||HHJ Peter Hughes QC||HC||General Surgery||•|
|20||Bayley v George Eliot Hospital NHS Trust|| EWHC 3398 (QB)||21/12/2017||HHJ Worster||HC||Vascular Surgery||•|
|21||Cameron v Ipswich Hospital NHS Trust|| EWHC 38 (QB)||18/01/2018||HHJ Forster QC||HC||Neurosurgery / spinal surgery||•|
|22||Hassell v Hillingdon Hospitals NHS Foundation Trust|| EWHC 164 (QB)||06/02/2018||Dingemans J||HC||Neurosurgery / Spinal surgery||•|
|23||Duce v Worcestershire Acute Hospitals NHS Trust|| EWCA Civ 1307||07/06/2018||Hamblen LJ|
|24||ML (A Child) v Guy’s and St. Thomas’ National Healthcare Foundation Trust|| EWHC 2010 (QB)||31/07/2018||Martin Spencer J||HC||Obstetrics||•|
|25||Keane v Tollafield|| 8 WLUK 306||12/10/2018||HHJ Williams||CC||Podiatric Surgery||•|
|26||Richardson v Newcastle upon Tyne Hospitals Foundation Trust|| 12 WLUK 556||19/12/2018||Recorder Cox QC||CC||Neurosurgery and Maxillofacial surgery||•|
|27||Kennedy v Frankel|| EWHC 106 (QB)||25/01/2019||Yip J||HC||Neurology||•|
|28||Keh v Homerton University Hospitals NHS Foundation Trust|| EWHC 548 (QB)||08/03/2019||Stewart J||HC||Obstetrics||•|
|29||Ollosson v Lee|| EWHC 784 (QB)||29/03/2019||Stewart J||HC||General Practice (though involving vasectomy)||•|
|30||Diamond v Royal Devon and Exeter NHS Foundation Trust|| EWCA Civ 585||08/04/2019||McCombe LJ|
Nicola Davies LJ
|31||Mills v Oxford University Hospitals NHS Trust|| EWHC 936 (QB)||12/04/2019||Karen Steyn QC||HC||Neurosurgery||•|
|32||Price v Cwm Taf University Health Board|| EWHC 938 (QB)||15/04/2019||Birss J||HC||Orthopaedic surgery||•|
|33||Mordel v Royal Berkshire NHS Foundation Trust|| EWHC 2591 (QB)||08/10/2019||Jay J||HC||Sonography / Fetal Medicine||•|
|34||Metcalf v Royal Devon and Exeter NHS Foundation Trust|| EWHC 3549 (QB)||19/12/2019||David Pittaway QC||HC||Oncology / Thoracic surgery||•|
|35||Pepper v Royal Free London NHS Foundation Trust|| EWHC 310 (QB)||25/02/2020||Geoffrey Tattersall QC||HC||HPB Surgery||•|
|36||NKX v Barts Health NHS Trust|| EWHC 828 (QB)||08/04/2020||Simeon Maskrey QC||HC||Obstetrics||•|
|C wins on breach & causation||C wins on breach, loses on causation||C loses on breach|