Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 104
The Montgomery Standard in Primary
Care: My GP Expert Witness Perspective
on the Evolution of Informed Consent
by Dr Samah Boulis, GP Expert Witness.
From Bolam to Montgomery
The Modern Legal Standard
Historically, disclosure of risk was judged by the
Bolam standard: a doctor would not be negligent if
supported by a responsible body of medical opinion.
This extended to what risks were discussed with
patients, reinforced by Sidaway. The approach was,
in essence, clinician-centred.
Montgomery establishes that clinicians must take
reasonable care to ensure patients are aware of:
Montgomery’s case changed that.
A risk is “material” if:
The shift from Bolam to Montgomery was more
than a legal pivot; it was a cultural revolution in the
consultation room. For the GP Expert Witness, it
moved the goalposts from “What would a reasonable
doctor say?” to “What would this speci昀椀c patient
want to know?”
•
Material risks of proposed treatment
•
Reasonable alternatives, including
no treatment
•
A reasonable person in the patient’s position
would likely attach signi昀椀cance to it, or
•
The clinician knows (or ought to know) that the
particular patient would 昀椀nd it signi昀椀cant
What This Means in Practice
From an expert witness perspective, several
principles are now critical when assessing breach:
In the high-pressure environment of primary care,
where ten-minute consultations are the norm, the
“Montgomery standard” is frequently where clinical
negligence claims are won or lost. Adherence to the
principles established in Montgomery v Lanarkshire
Health Board is frequently central to determining
liability in clinical negligence claims concerning
informed consent.
•
Patient-centred disclosure: The focus is no
longer on what a responsible body of clinicians
would ordinarily disclose under the Bolam
test, but on whether a reasonable patient
in the claimant’s position would regard the
information as signi昀椀cant, or whether the
clinician knew (or ought to have known) that
this particular patient would do so.
•
Dialogue over documentation: Consent is
now properly understood as an ongoing
communicative process rather than a discrete
event evidenced by a signature.
•
Materiality is driven by consequences as well
as probability: The assessment of material risk
is not con昀椀ned to statistical frequency. Even
low-probability risks may require disclosure
where the potential consequences are serious
and therefore likely to in昀氀uence a reasonable
patient’s decision-making.
The Facts That Changed the Law
Mrs Montgomery, a diabetic woman of small stature,
faced an increased risk of shoulder dystocia during
vaginal delivery (approximately 9–10%). She was
not advised of this risk, nor o昀昀ered a caesarean
section. Tragically, her child su昀昀ered cerebral palsy
following complications during birth.
The Supreme Court found that had she been
properly informed, she would have opted for a
caesarean section. The failure to disclose was
therefore causative—and negligent.
EXPERT WITNESS JOURNAL
102
JUNE 2026
