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Consent to medical treatment: Scotland hammers home the final nail in the coffin of Bolam

Should a doctor inform a pregnant woman of a 9-10% risk of harm to her baby during delivery? Is it part of the doctor’s duty to do so, no questions asked? While many readers might think that the answers to these questions are self-evident, this has by no means been clear as a matter of law throughout the United Kingdom for the last 30 years. Indeed a ‘No’ response might have been upheld by the courts if the medical profession thought it acceptable not to inform. This has now changed with the recent decision of the Supreme Court in Montgomery v Lanarkshire Health Board, which has confirmed, categorically, that the duty of care that doctors owe to patients when advising them about their care is not to be determined by reference to responsible medical practice, or the so-called Bolam test.