How landmark Montgomery ruling may influence aesthetic practice

Posted: 04/03/2016

Although a decision to undergo cosmetic surgery is rarely taken lightly, Penningtons Manches often hears from clients who with hindsight feel that they were not advised fully prior to their procedure. Investigations may establish that the consenting process has not been as thorough as it needed to have been. Patients may believe that they understand the pros and cons of any planned procedure and that they have ‘consented’ purely because they have signed a consent form. This is not necessarily so. It has been well established for some time that consent should not be obtained by just any doctor, regardless of grade or specialty, let alone by a sales adviser, but by a doctor of appropriate seniority and experience to understand the procedure, its risks and benefits. Ideally consent should be obtained sufficiently in advance of the procedure and certainly more than 24 hours beforehand. 

The Supreme Court has clarified the law on consent through its ruling in the landmark case of Montgomery v Lanarkshire. In doing so, it has provided ‘declarative law’, meaning that its judgment is a declaration of what the law has always been, although perhaps not understood at the time. Montgomery therefore has retrospective effect. 

The Supreme Court has stated in the clearest of terms that doctors must take reasonable care to ensure that patients are made aware of any ‘material risks’ involved in a recommended treatment and of any reasonable alternatives. Materiality of risk cannot be reduced to percentages; risk significance reflects other factors besides magnitude, for example the nature of the risk, the effect of its occurrence on the patient’s life and how important the beneficial aim of the treatment is to the patient.

The test of materiality is fact and patient sensitive. It is whether, in the circumstances of the case, either: 

• a reasonable person in the patient’s position would be likely to attach significance to the risk; or
• the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. 

Therefore to advise patients properly, a doctor must engage in dialogue with them. To satisfy the duty of care, patients must be counselled about alternative treatments and the consequent risks. Bearing in mind that cosmetic surgery is very likely to be elective surgery, simply not going ahead with the procedure is of course an option which must be considered. Cosmetic surgery patients will probably be looking for an enhancement in appearance for their own, very personal reasons, and the risk of the final result simply not being as good as anticipated will be extremely important to them. They are therefore likely to attach significance to the risk of not achieving the appearance they are hoping for. 

Alison Johnson, senior associate in the cosmetic surgery team at Penningtons Manches LLP, said: “The issue of consent from a cosmetic surgery candidate is of course extremely important, particularly given how unpredictable and subjective the results may be. The option of simply not operating should be discussed, where the immediate result of no surgery is status quo. We see many examples of distressed patients, who are understandably disappointed by their cosmetic result and feel that they wouldn’t have gone ahead with elective surgery had they been aware of what could go wrong. Following the high profile ruling in Montgomery, we hope that a better standard of care in this area will now be provided.”

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