Consent – post-Montgomery

 

Commentary

Although this is a dental/maxillofacial negligence case, it is of importance for all healthcare experts instructed in cases where consent may be an issue. It highlights points about which experts should enquire when there may be an issue as to consent to a surgical or other procedure. In this case it was found that the consent process was deficient in a number of respects. It is also a case which illustrates how expert evidence can separately assist the court on the issues of breach of duty, causation, condition and prognosis.

Learning points:

General

• When exploring consent:

  • Consider any national or local guidelines concerning the procedure.

  • Check for consistency between the consent form and any published guidance.

  • Ask what literature, if any was provided, or advice given as to internet sources of information.

  • Ask what opportunity there was to ask questions and discuss the procedure.

  • Ask what explanation there was of material risks.

  • Ask what alternative procedures were discussed.

  • Ask whether the opportunity was given to discuss the procedure with anyone else such as a family member.

  • Ask how long the consent process took.

  • Ask how the consent form was completed.

• Readily altering your opinion on key points may suggest to the court that there is a lack of clarity and rigour in your analysis.

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