Documenting informed consent in plastic surgery claims: the Montgomery standard in clinical practice

The scope of the duty to disclose in elective surgery

In clinical negligence litigation, a challenge to informed consent in elective plastic surgery often turns on whether the surgeon disclosed the risks that a reasonable person in the claimant’s position would be likely to attach significance to. Following Montgomery v Lanarkshire Health Board [2015], the focus for the expert witness shifts from the established clinical practice of a responsible body of practitioners to the specific information requirements of the individual patient.

Expert evidence is required to determine whether the patient was made aware of material risks involved in the recommended treatment and of reasonable alternative or variant treatments. Whether a risk is material is not determined solely by its statistical frequency, but by the significance the particular patient might reasonably place on the occurrence of the adverse outcome. In the context of cosmetic and reconstructive plastic surgery, where the surgery is elective, the requirement for disclosure necessitates a careful analysis of the information provided to the patient.

Evidential requirements beyond the consent form

An expert report on consent rarely rests on the consent form alone. While a signed document serves as evidence that a discussion took place, it does not confirm the adequacy of the dialogue. The expert report must analyse the medical records, including pre-operative consultation notes, patient letters, and any correspondence regarding the patient’s motivations for seeking surgery. Specialists such as a plastic and reconstructive surgeon are often instructed to assess whether these discussions align with the standard of disclosure expected post-Montgomery.

• Consultation notes: Detail the nature and depth of the discussion, including the patient’s stated objectives and any specific anxieties.
• Patient information leaflets: Evidence of standardised material provided to the patient.
• Correspondence: Evidence of the patient’s specific concerns or questions raised before the date of surgery.
• Pre-operative photographs: Evidence of the baseline condition, which informs the assessment of whether a particular risk was disproportionately high for that specific patient.

Where the medical records are silent on a specific risk discussion, the expert may consider the clinical context, the standard practice at the time of the event, and witness evidence concerning the patient’s expressed anxieties. A lack of recorded evidence limits the ability to demonstrate that the duty to disclose was fulfilled but does not automatically equate to a breach.

Distinguishing clinical judgment from the disclosure obligation

A central distinction in Montgomery is the boundary between clinical judgment and the duty of disclosure. The decision to recommend a specific surgical approach remains a matter of clinical judgment, evaluated under the Bolam and Bolitho framework; the clinician must demonstrate that their chosen approach has a logical basis. However, the decision of what to disclose to the patient is a legal duty of disclosure rather than a matter of clinical judgment.

An expert report may encounter situations where a surgeon opted not to disclose a particular risk, arguing it was in the patient’s best interests to avoid unnecessary alarm. The expert must address whether this withholding of information was objectively justifiable, as the Montgomery standard significantly narrowed the scope for therapeutic privilege. If an expert asserts that the risk profile was too complex for the patient, the opinion must be tested against the requirement to respect the patient’s autonomy.

Causation in consent cases

Establishing a breach of duty regarding consent is only the first stage of a claim. The expert evidence must also address whether, had the risk been appropriately disclosed, the claimant would have chosen to undergo the surgery. This requires a counter-factual analysis of the claimant’s decision-making process. The expert should identify whether the claimant had specific motives—such as correcting a functional deficit—that would have rendered them more or less likely to proceed if the risks had been fully explained.

The expert’s role is to provide evidence on the nature and probability of the risks that were not disclosed, and how those risks would have impacted the surgical outcome. The legal team then weighs this against the claimant’s documented and stated priorities. The analysis of causation remains distinct from the breach of duty assessment and generally requires the application of the ‘but-for’ test to the claimant’s individual circumstances.

Jurisdictional and procedural considerations

In England and Wales, expert evidence in civil proceedings is governed by the Civil Procedure Rules (CPR), particularly the expert’s duty to the court under CPR 35.3. When an expert is instructed to provide an opinion on consent, their reasoning must remain independent of the instructing party’s position. Where the question of consent involves significant differences in professional interpretation between the experts, the court may direct a discussion and a joint statement under CPR 35.12 to narrow the issues. This process is distinct from the instruction of a single joint expert, which may be directed by the court under CPR 35.7, with the expert receiving instructions pursuant to CPR 35.8.

For proceedings in Scotland, the governing principles for skilled evidence derive from Kennedy v Cordia (Services) LLP [2016], which requires that the expert’s opinion be reliable and grounded in professional knowledge. The duty of disclosure in Scottish cases follows the same emphasis on patient autonomy established in Montgomery. Experts should ensure that their reports are framed according to the relevant jurisdictional and procedural requirements of the court in which the action is brought.