Recent Supreme Court decision changes consent position in favour of cosmetic surgery patients

Posted: 30/09/2015

The recent Supreme Court decision in the case of Montgomery v Lanarkshire Health Board has changed the historic consent position where a doctor only needed to discuss risks which other doctors felt should be discussed. The Supreme Court decided that a doctor must make sure that the patient knows about the material risks of treatment and that reasonable alternatives have been discussed. In deciding whether a risk is material, the court will now consider the question from the patient’s rather than the doctor’s perspective. A risk the doctor thinks is worth taking may not be a risk the patient thinks is worth taking. 

The Penningtons Manches cosmetic surgery claims team is currently investigating a case where it is alleged that a patient was not adequately advised of the risks of surgery and did not provide informed consent before going ahead with a rhinoplasty procedure. This is despite having specifically asked the surgeon to detail all of the risks, so that they could make an informed decision about whether to go ahead with the procedure. 

Unfortunately, in this case, complications were encountered during the procedure and the patient has required corrective surgery as a result. It is their evidence that, had they been advised of all the potential complications associated with this type of surgery, they would not have gone ahead with it. 

It is imperative that all patients are adequately advised of the risks associated with any type of surgery, regardless of whether the risks are known and recognised. In most cases, patients are undergoing surgery/treatment that is necessary but, in the case of an elective procedure, it is especially important that patients are properly advised of any and all risks associated with the procedure by their surgeon. Failure to do so is likely to lead to many more claims against surgeons. 

Amy Milner, a solicitor within the cosmetic surgery claims team, says: “Since the Supreme Court overturned the earlier decisions in this case and changed the law in relation to consent, we are seeing an increase in claims involving consent, where a patient alleges they were not adequately advised about the material risks of treatment or offered any reasonable alternatives. We have also seen an increase in the number of enquiries from people who have not had their expected result from cosmetic surgery. 

“A plastic surgeon that we regularly instruct has advised that the case of Montgomery is likely to have a significant impact on pre-operative consultations with patients and will make surgeons think more about what potentially can go wrong and ensure that a patient knows exactly what they are consenting to.”

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