“The UK Supreme Court case of Montgomery v Lanarkshire Health Board is often hailed as a seminal case in medical negligence, marking a shift toward patient-centric decision-making in healthcare. Yet questions continue to be asked about the scope and implications of the ruling. In this case note, we discuss how Montgomery has been interpreted in two Scottish cases: McCulloch v Forth Valley Health Board and B v General Medical Council. We suggest that, in these decisions, the Scottish courts have continued the trend of restricting the scope of Montgomery to the disclosure of risk in relation to reasonable treatment options, rejecting any further implications in relation to consent or negligence. However, we argue that, in defining these boundaries, the Scottish courts have retreated too far from Montgomery, thereby moving questions of clinical negligence further into the realm of medical discretion. Now that McCulloch is itself being appealed to the Supreme Court, whether this retreat will stand remains to be seen …”
Zahra Jaffer and Ruby Reed-Berendt, ‘Defining the boundaries of Montgomery: a Scottish approach’ (2022) 38 Professional Negligence (2) 105-111.