Informed Consent After Montgomery: How Standards Differ Worldwide

For most of the twentieth century, how much a surgeon told a patient was judged the same way as how the surgeon operated: by asking whether a responsible body of practitioners would have done the same. In most of the common-law world that is no longer the law for disclosure. Informed consent is now judged by reference to what the patient would want to know, and a surgeon who cites departmental custom to defend what they did not mention is citing something the court no longer weighs. This post sets out the current test, compares how jurisdictions reached it, and turns it into the conversation an orthopaedic clinic actually needs. The clinical framework sits in the topic page on informed consent and shared decision-making.

What changed, and when

Australia, 1992

In Rogers v Whitaker (1992) 175 CLR 479 (opens in a new tab), Maree Whitaker had surgery on her right eye, which had been almost blind since a penetrating injury at the age of nine. The operation was performed competently, but she developed sympathetic ophthalmia in her left eye and lost all sight in it. The evidence was that the condition followed about 1 in 14,000 such procedures. She had not been warned, although she had asked repeatedly about complications.

The High Court held that the duty to warn is not governed by professional opinion. A risk is material if a reasonable person in the patient's position, if warned, would be likely to attach significance to it, or if the doctor is or should reasonably be aware that this particular patient would attach significance to it.

The second limb decided the case. A 1-in-14,000 risk is small by any measure. To a woman asking about her only seeing eye, it was the whole question.

The United Kingdom, 2015

The UK took another 23 years. In Montgomery v Lanarkshire Health Board [2015] UKSC 11 (opens in a new tab), Nadine Montgomery, just over five feet tall and with insulin-dependent diabetes, was expecting her first baby in 1999. The agreed risk of shoulder dystocia for diabetic mothers was 9–10%. She was not told. Her obstetrician's practice was not to discuss it, because she judged the risk of a grave outcome for the baby very small and believed that women told about it would ask for a caesarean section. Shoulder dystocia occurred and her son was born with severe disabilities.

The Supreme Court, giving judgment on 11 March 2015, held that the majority approach in Sidaway was unsatisfactory and that there was "no reason to perpetuate the application of the Bolam test" to disclosure. At paragraph 87 it adopted the Rogers formulation: the doctor must take reasonable care to ensure that the patient is aware of any material risks in any recommended treatment, and of any reasonable alternative or variant treatments.

Three further points in the judgment (paragraphs 89–91) carry most of its practical weight:

• Materiality "cannot be reduced to percentages". It depends on the nature of the risk, its effect on this patient's life, the importance to the patient of the benefit sought, and the alternatives and their risks.
• The advisory role involves dialogue. The duty is not fulfilled by "bombarding the patient with technical information", still less "by routinely demanding her signature on a consent form".
• The therapeutic exception must not be abused. It cannot be used to stop a patient making a choice the doctor considers contrary to her interests.

The United States and Canada, earlier still

The reasonable-patient idea is older in North America. Canterbury v Spence, 464 F.2d 772 (D.C. Cir. 1972) (opens in a new tab) rejected disclosure set by medical custom and asked what a reasonable person in the patient's position would consider significant. In Canada, Reibl v Hughes [1980] 2 SCR 880 (opens in a new tab), which concerned an operation carrying a risk of stroke of about 10%, took the same patient-centred line. It decided causation on a modified objective test: what a reasonable person in the patient's particular position would have chosen if properly informed. Mr Reibl succeeded partly because the surgery was not pressing and he would have deferred it until a pension entitlement vested.

The test, stated plainly

A risk is material if either limb is satisfied:

1. The objective limb: a reasonable person in the patient's position would be likely to attach significance to it; or
2. The subjective limb: the surgeon is, or should reasonably be, aware that this patient would be likely to attach significance to it.

The subjective limb is where most real cases are won and lost, and it is the limb surgeons under-serve. It is triggered by what you know about the patient, which means by what you asked them. The Supreme Court noted in Montgomery (paragraph 73) that expressions of concern, as well as specific questions, are plainly relevant. A surgeon who never asks what the patient does, or what they want to get back to, cannot claim ignorance of what mattered when the information was there for the asking.

Bolam has not gone. Whether the diagnosis, choice of treatment and technical performance were negligent is still judged against a responsible body of professional opinion that withstands logical analysis (Bolam [1957] 1 WLR 582, as qualified by Bolitho [1998] AC 232). One case can therefore be judged by two standards: patient-centred for what was said, profession-centred for what was done. The wider negligence framework is set out in the medico-legal duties of a surgeon and the topic page on medicolegal principles and negligence.

What "material" means in an orthopaedic clinic

Abstract tests become concrete quickly in orthopaedics, because so many operations trade one function for another.

The last row is the most common shape of failure, and it is not a failure to quote a complication. It is a failure to present a genuine alternative. The evidence is reviewed in distal radius fractures in older adults and the distal radius fractures topic.

Doing nothing is always one of the alternatives, and it is the one most often left out. The GMC's Decision making and consent (opens in a new tab) guidance, in effect since 9 November 2020, puts it in its fourth principle: doctors must try to find out what matters to patients so they can share relevant information about the benefits and harms of proposed options and reasonable alternatives, "including the option to take no action".

The therapeutic exception, and why you should not rely on it

Montgomery (paragraph 88) allows a doctor to withhold a risk if disclosure would be seriously detrimental to the patient's health, and excuses discussion in necessity, for example an unconscious patient needing urgent treatment. The Court declined to define the scope further and warned against abuse.

In elective orthopaedics the exception is close to unusable as a defence. If you find yourself reasoning that a patient would be upset, or would refuse a beneficial operation, you are describing the reasoning Montgomery was decided against.

The legitimate neighbour is the patient who does not want the detail. The Court accepted (paragraph 85) that a person may decide not to be told about risks. Record that the information was offered and declined, because an undocumented waiver looks the same as a conversation that never happened.

How jurisdictions compare

The United States is the outlier because there is no national answer. A surgeon licensed in more than one state may be held to different disclosure standards in each.

Accurate as of October 2026. Case law and statute change; confirm the current position in your jurisdiction before relying on it.

Who can take consent

A recurring failure has nothing to do with the legal test: consent taken by someone who cannot answer the questions.

The Royal College of Surgeons of England's Consent: Supported Decision-Making (opens in a new tab) (2016), written after Montgomery, says the discussion lies with the surgeon responsible for the patient's care or, if that is not practical, an experienced member of the team. Whoever has it should be suitably trained and qualified to provide the treatment, and know its risks, complications and alternatives. The surgeon who has the discussion should sign the form at the end of it. The operating surgeon remains responsible for making sure the patient had enough time and information before treatment starts. For minor investigative procedures such as arthroscopy, the guide accepts that specifically trained staff can hold the discussion.

Sending the most junior member of the team to collect a signature on the morning of surgery, for a conversation they cannot competently have, fails that standard whatever the form says. Consent obtained weeks earlier in clinic should be confirmed on the day, not reproduced. Patients reconsider, circumstances change, and a six-week-old signature does not show the patient still wants the operation.

How to run the conversation

The legal test tells you what must be covered. How you cover it decides whether the patient understands it.

Start before the form appears. Sit down, explain why you are recommending the operation and what the reasonable alternatives are, and leave room for the patient to think rather than agree. The form is the last step of the discussion, not the opening.

Ask what they want back. Occupation, sport, hobbies, caring responsibilities. This is not small talk. It is how you discover what is material under the subjective limb.

Ask what worries them most, then wait. Patients rarely arrive with a list of complications. They arrive worried about pain, time off work, who will look after a partner, or whether the operation will change daily life. The concern that matters often never appears on a standard checklist.

Make risk intelligible. Give the realistic benefit, not the best case. Frame each relevant risk as how likely it is, what it would mean for this patient, and what you would do if it happened. Avoid both false reassurance and a recited list that leaves the patient overwhelmed; Montgomery criticised "bombarding" patients with technical information as firmly as it criticised silence.

Make declining safe. Some patients hesitate because they feel they should not question a surgeon, or fear that saying no will affect their care. Say plainly that no decision is final until they are ready, that they can change their mind, and that conservative care remains available. A question such as "What is holding you back?" often surfaces doubts that would otherwise appear only after the operation.

Give written information and time. For elective surgery, offer a named leaflet and time to decide. The RCS guide notes that written information supports the discussion but does not replace it.

What a defensible record looks like

The consent form proves that a form was signed. The RCS guide says it "provides no meaningful information about the quality of the discussion". What defends a case years later is a contemporaneous note showing the conversation happened. It should capture:

• The diagnosis and the operation proposed, in the words used with the patient
• The specific risks discussed, including any the patient raised
• The alternatives offered, expressly including non-operative management
• What the patient said mattered to them: occupation, goals, what they asked about
• Any written information given, identified by name and version
• That the patient had the opportunity to ask questions, and their decision

The fourth item wins cases, because it is direct evidence that you engaged the subjective limb. A note reading "discussed infection, VTE, stiffness, revision; patient is a tiler and asked about kneeling: explained kneeling often not restored after TKA; alternatives incl. continued analgesia and injection discussed; leaflet v3 given" is worth more than any number of ticked boxes. The RCS guide adds that the record matters even when the patient decides against surgery. For record-keeping more broadly, see defensible clinical documentation.

The failure modes, ranked

In roughly the order they appear in claims:

1. No alternative discussed, particularly non-operative management where the evidence for surgery is equivocal.
2. Generic risks only: a recited list with nothing specific to this patient's life or work.
3. The patient's concern never elicited, because nobody asked what they did or wanted.
4. Consent taken by someone unable to discuss it: junior, unfamiliar with the procedure, on the day.
5. No record of the conversation: a signed form and nothing else.
6. Materially changed circumstances: a different implant, approach or extent of surgery than was discussed, with no fresh conversation.

None of these is a technical surgical error. All are avoidable within an outpatient appointment. Patients who lack capacity follow a different route, covered in capacity and best-interests decisions.

A checklist for the clinic

1. Establish what they want back.
2. State the diagnosis and proposed operation plainly.
3. Give the realistic benefit.
4. Cover the alternatives, including doing nothing, and what would happen with each.
5. Discuss risks, weighted to what matters to this patient.
6. Ask what concerns them most, and wait for the answer.
7. Offer written information and time for elective surgery.
8. Write a genuine note, not just a form.
9. Confirm on the day that nothing has changed.

The summary

The law asks one question: did this patient have the information they needed to make this decision? Not whether other surgeons would have said the same, not whether the risk was statistically small, and not whether the surgeon thought the patient would choose wisely.

The surgeons who do this well are not doing anything legally sophisticated. They ask what the patient does for a living, they say what would happen if nothing were done, and they write down what the patient said mattered. That takes a few extra minutes in clinic, and it is the highest-yield medico-legal habit in orthopaedic practice.

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This article describes legal frameworks for educational purposes and is not legal advice. Standards vary by jurisdiction and change over time; take advice from your indemnity provider on any specific situation.