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.

The cost of clinical negligence in the UK has continued to rise despite no increase in claims numbers from 2016 to 2019. In the US, medical malpractice claim rates have fallen each year since 2001 and the payout rate has stabilized. In Germany, malpractice claim rates for spinal surgery fell yearly from 2012 to 2017, despite the number of spinal operations increasing. In Australia, public healthcare claim rates were largely static from 2008 to 2013, but private claims rose marginally. The cost of claims rose during the period. UK and Australian trends are therefore out of alignment with other international comparisons. Many of the claims in orthopaedics occur as a result of “failure to warn”, i.e. lack of adequately documented and appropriate consent. The UK and USA have similar rates (26% and 24% respectively), but in Germany the rate is 14% and in Australia only 2%. This paper considers the drivers for the increased cost of clinical negligence claims in the UK compared to the USA, Germany and Australia, from a spinal and orthopaedic point of view, with a focus on “failure to warn” and lack of compliance with the principles established in February 2015 in the Supreme Court in the case of Montgomery v Lanarkshire Health Board. The article provides a description of the prevailing medicolegal situation in the UK and also calculates, from publicly available data, the cost to the public purse of the failure to comply with the principles established. It shows that compliance with the Montgomery principles would have an immediate and lasting positive impact on the sums paid by NHS Resolution to settle negligence cases in a way that has already been established in the USA.

Cite this article: Bone Joint J 2020;102-B(5):550–555.

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