Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 32
3. Informed consent
Key Takeaways
The Court was critical of both the timing and
content of the consent process.
This case provides helpful commentary on the
Court’s application of the Supreme Court decision
in Montgomery. Key takeaways from the judgement
are:
•
Timing: The claimant 昀椀rst met her consultant
surgeon on the morning of surgery.
•
Content: The claimant was not informed about
the option of exposing the femoral vessels, nor
about the risks created by her speci昀椀c anatomy.
The judge stated that it is not for the surgeon to
determine for the claimant, what the claimant’s
risk appetite should be and that it was a breach of
the duty of care owed by the surgeon not to explain
to the claimant that another option was available.
During evidence it was heard that the claimant
would have chosen the variant procedure involving
femoral preparation, although she would not have
delayed surgery.
Wider commentary
The court reiterated the principle from Montgomery
v Lanarkshire Health Board [2015] UKSC 11 that it is
for the courts, not the medical profession, to de昀椀ne
the scope of a patient’s rights. The court emphasised
that while doctors exercise professional judgment
when deciding on treatment options, they cannot
unilaterally determine what risks to disclose to
the patient. Instead, patients must be given the
information necessary to make their own decisions
about the risks they are willing to accept.
•
Pre-operative planning: Foreseeable
catastrophic risks must be actively managed.
Failure to take obvious steps, such as preparing
femoral access, will be treated as a breach.
•
Informed consent: Montgomery remains central.
Surgeons must explain not just material risks,
but also reasonable alternative techniques that
may reduce those risks.
•
Recognised risks: A poor outcome is not proof
of negligence. If a complication arises that is
well-recognised and the surgeon acted with
reasonable care, no breach will be found.
•
Documentation: Late or inadequate records
undermine both patient safety and the ability
to defend a claim.
Dr Syed Saboor
Consultant Physician with Special
Interest in Respiratory Medicine
MBBS, MD, FRCPI, FRCP, FCCP
The judgment also highlights that determining
whether a risk is “material” is fact-speci昀椀c and
patient-speci昀椀c, considering not just statistical
likelihood but also the potential impact on the
patient’s life, the importance of the bene昀椀ts sought,
and the risks associated with alternative treatments.
This approach reinforces the Montgomery principle
that consent is not a routine process, and it is a
patient-centred discussion that must re昀氀ect the
individual’s perspective and circumstances.
I have been a Respiratory Consultant in the UK since 1996 and
used to undertake medicolegal work up until 2010 but then
stopped. I attended an Expert Witness Course over 20 years ago.
I have been involved in assessing coal miners, textile industry
workers (Bysinosis) and COPD suffers in coalmining. I also have
expertise in dealing with asbestos related lung disease such as
pleural plaques, asbestos related pleural thickening, malignant
pleural effusion, mesothelioma and lung cancer. I have experience
in assessing patients with occupational asthma and
bronchopulmonary aspergillosis.
I have practicing privilleges at Circle Health Hospitals in North
London and Spire London East Hospital where I can see and
assess patients and carry out necessary investigations.
The court further criticised governance and
documentation in this case. The operation note was
not completed until 16 days after surgery, and no
Datix or Serious Incident investigation was carried
out. The absence of contemporaneous records
made it more di昀케cult for the Trust to defend its
position and illustrates the importance of proper
documentation in supporting compliance with both
clinical and legal standards.
My turnover time is fairly short and provide medical reports in
4-6 weeks time
Email: syedsaboor@aol.com
Telephone: 07715 562082
Website: www.drssaboor.com
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EXPERT WITNESS JOURNAL
29
DECEMBER/JANUARY 2025-2026
