Two discrete legal factors enable the surgeon to treat an injured patient the fully informed, autonomous consent of the adult patient with capacity via civil law; and the medical exception to the criminal law. This article discusses current concepts in consent in trauma; and also considers the perhaps less well known medical exception to the Offences against the Person Act 1861, which exempts surgeons from criminal liability as long as they provide ‘proper medical treatment’.

Cite this article: Bone Jt Open 2024;5(7):565–569.

Introduction. The case of Montgomery in 2015 considered standards of risk disclosure, whether alternative treatments had been discussed, standards of professional performance, and the importance of patient autonomy. Methods. A survey was devised to investigate orthopaedic surgeons' knowledge of the law of consent and risk disclosure and distributed by Survey Monkey. Results. 194 respondents from a total of 365 consultant orthopaedic surgeons contacted (53%). 85% of respondents were aware that Montgomery is primarily an obstetric case, 14.5% thought it was a spinal surgery case, and 1 respondent (0.5%) thought it was a paediatric surgery case. 99% correctly defined the Bolam test, but 57% erroneously believed that Bolam was still applicable in consent cases. 7% of respondents believed that it was not necessary to disclose a risk of surgery if the risk was less than 1%, and 4% of respondents if the risk was less than 10%. The legal test of materiality was correctly identified by 86% of respondents where a reasonable person in the patient's position would be likely to attach significance to the risk. 5% erroneously believed that provision of a standardised, printed information booklet provides sufficient risk disclosure for the individual patient to give their informed consent. 97% were aware that the surgeon must discuss reasonable alternative treatments including ‘no treatment’. Only 28% were aware that when a surgeon refers a patient for an interventional radiology procedure, it is the referring doctor who should formally hold and document the initial consent discussion. Discussion. General awareness of Montgomery was satisfactory, including the need to discuss alternative treatments including ‘no treatment’, and the qualitative concept of material risk. There was less understanding that material risk is independent of any quantitative rate of occurrence. Over half of consultants erroneously believed that the Bolam test was still applicable in consent cases. Small numbers of respondents erroneously thought that an information booklet constituted sufficient information disclosure. There was widespread misunderstanding that if a consultant surgeon refers an individual for an interventional radiology investigation it is in fact for the referring doctor to hold the initial consent discussion. Further training is required in respect of several issues raised by Montgomery