Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland)

clinical reason why the patient should not be informed, a doctor,
recognising and respecting his patient's right of decision, could
hardly fail to appreciate the necessity for an appropriate
warning.” (p 900)
53. In relation to this passage, attention has tended to focus on the words “a
substantial risk of grave adverse consequences”; and, in the present case, it
was on those words that both the Lord Ordinary and the Extra Division
concentrated. It is however important to note that Lord Bridge was merely
giving an example (“The kind of case I have in mind would be …”) to
illustrate the general proposition that “disclosure of a particular risk [may be]
so obviously necessary to an informed choice on the part of the patient that
no reasonably prudent medical man would fail to make it”. In relation to that
proposition, it is also important to note, having regard to the last sentence in
the passage quoted, that the standard is that of a doctor who recognises and
respects his patient’s right of decision and is exercising reasonable care (ie is
“reasonably prudent”). Reading the passage as a whole, therefore, the
question for the judge is whether disclosure of a risk was so obviously
necessary to an informed choice on the part of the patient that no doctor who
recognised and respected his patient’s right of decision and was exercising
reasonable care would fail to make it. So understood, Lord Bridge might be
thought to arrive at a position not far distant from that of Lord Scarman.
54. Lord Bridge also said (at p 898):
“I should perhaps add at this point, although the issue does not
strictly arise in this appeal, that, when questioned specifically
by a patient of apparently sound mind about risks involved in a
particular treatment proposed, the doctor's duty must, in my
opinion, be to answer both truthfully and as fully as the
questioner requires.”
55. Lord Templeman implicitly rejected the Bolam test, and approached the issue
on the basis of an orthodox common law analysis. He noted, like Lord
Diplock and Lord Bridge, the imbalance between the knowledge and
objectivity of the doctor and the ignorance and subjectivity of the patient, but
accepted that it was the right of the patient to decide whether or not to submit
to treatment recommended by the doctor, and even to make an unbalanced
and irrational judgment (p 904). In contract, it followed from the patient’s
right to decide whether to accept proposed treatment that “the doctor
impliedly contracts to provide information which is adequate to enable the
patient to reach a balanced judgment, subject always to the doctor’s own
obligation to say and do nothing which the doctor is satisfied will be harmful
Page 17