Consent After Montgomery: Legal Considerations
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Consent forms were created in the paternalistic days of medicine as a defence to unlawful touching. However, the forms are now used as evidence of an autonomous patient’s informed choice to a specific treatment. However, it is self-evident that the patient ‘consents’ to the treatment by them lying on the bed. What is not self-evident is that they have taken an autonomous, considered and informed decision to be there or have been advised of disadvantages and the alternatives—which is what the courts want to know. A signature on a form, especially if signed shortly before an intervention, is no evidence of a patient’s informed decision to have the treatment. Optimal medical practice requires a decision record of Montgomery-compliant discussions and learning in order for doctors to successfully argue that their patients understood the risks and benefits and made an informed choice to undergo treatment.