From Bolam to Montgomery: The Transformation of Medical Negligence Law in theUK

Abstract

This article examines the development of medical negligence law in the United Kingdom, with a focus on the transformation of the duty of care owed by medical professionals to their patients. This article starts with Bolam v. Friern Hospital Management Committee [1957],[1] which created the professional deference principle. The subsequent developments in Bolitho v. City and Hackney Health Authority [1998] [2]are discussed. Finally, Montgomery v. Lanarkshire Health Board [2015] [3]affirmed the autonomy of patients by redefining the concept of informed consent. Using government records, scholarly studies, court rulings, and drawing on judicial reasoning, academic commentary, official reports, and public discourse, the article evaluates whether Montgomery has successfully recalibrated the doctor–patient relationship and considers future reforms necessary to embed meaningful patient-centred care in practice.

Introduction

Medical negligence constitutes a particularly contentious domain within tort law, situated at the nexus of legal doctrine, ethical principles, and healthcare policy considerations. Fundamentally, the legal system must balance two key demands: shielding patients from the careless actions or inactions of medical personnel and ensuring that practitioners are not overburdened in a complex and ever-evolving clinical environment. This essay will first examine how the duty of care in medical negligence has evolved, then analyse key court decisions and their impact, and finally assess the current challenges and potential changes required to establish a genuinely patient-centred approach.

Historically, the judiciary has been reluctant to intervene in medical decision-making, often deferring to professional expertise. This position was epitomised in Bolam v Friern Hospital Management Committee[4] [1957], where McNair J formulated what became known as the Bolam test: a doctor is not negligent if acting in accordance with a practice accepted by a responsible body of medical opinion, even if others might disagree.¹ This principle entrenched medical paternalism and limited the scope for patient autonomy.

Subsequent developments, particularly Bolitho v City and Hackney Health Authority[5], introduced an additional safeguard: courts would only accept professional opinion if it could withstand logical analysis. Yet the fundamental emphasis on professional judgment remained largely intact.

It was only with Montgomery v Lanarkshire Health Board[6] that a paradigmatic shift occurred. As a rejection of paternalism, the Supreme Court ruled that physicians must disclose material risks and reasonable alternatives, and materiality must be assessed through the lens of a reasonable patient.³ This was a step towards patient autonomy as a result, moving medical law to the core values of dignity and self-determination.

The significance of Montgomery cannot be overstated. Academics like José Miola[7] say that it is “the end of Bolam in all but name” for informed consent.⁴ Others, meanwhile, argue that pragmatic challenges — including resource constraints, health inequalities, and defensive medicine — keep the new standard from working. This article discusses the history of medical negligence law from Bolam to Montgomery, critically examines its achievements, and explores the changes it might require to realise autonomy in the field of clinical practice.

The Bolam Test: Professional Paternalism Entrenched

The seminal case of Bolam v Friern Hospital Management Committee[8]  marked the crystallisation of this deferential stance. McNair J held that:

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”²

This formulation became known as the Bolam test. It effectively meant that as long as a body of medical opinion supported a doctor’s conduct, the courts would not find negligence, even if alternative medical views existed.

The Bolam test had far-reaching consequences. It entrenched medical paternalism, prioritising professional judgment over patient autonomy. As Brazier[9] observes, the doctrine “sanctioned a culture in which patients were told only what doctors thought they ought to know.”³ This reflected a mid-20th-century ethos in which medicine was viewed as a profession of superior knowledge, with patients cast in a passive role.

Bolitho: Introducing a Logical Safeguard

While Bolam remained dominant for decades, it was partially qualified by the House of Lords in Bolitho v City and Hackney Health Authority[10] [1998]. In this case, a child died after a doctor failed to attend, and the medical opinion presented in defence suggested that even if the doctor had participated in, intubation would not have been undertaken. The Court also found that, though legal consideration of medical knowledge had been the rule, the courts could refuse professional judgment if it was “capable of withstanding logical analysis.” ⁴ Lord Browne-Wilkinson stressed that respect is not a categorical principle; where expert opinion is seen as “indefensible” or contrary to reason, the court may interfere. ⁵ (“House of Lords — Bolitho v. City and Hackney Health Authority” 1997); The Bolitho modifier, although typically seen in the context of a small change, was essentially a key principle: It held that judicial review could be a safeguard against illogical or outdated approaches.

Limitations of Bolam and Bolitho

The general framework of Bolitho remained focused on professional autonomy even though it was constantly evolving.   Keown[11] claims that in many cases of negligence, the courts’ refusal to declare medical negligence under Bolam/Bolitho created “a near-immunity for doctors.”  ⁶  Furthermore, there was minimal patient involvement; rather than focusing on whether patients had gotten necessary information or were empowered to complete tasks, physicians were more concerned with whether they had performed correctly in accordance with professional standards.   When the Supreme Court specifically addressed the issues of informed consent and patient autonomy in the Montgomery case, this paradigm laid the groundwork for a more significant change.

Montgomery v Lanarkshire Health Board[12]: A Paradigm Shift

The actual shift of medical negligence happened with the landmark decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board[13] [2015].[14] The claimant, Nadine Montgomery, was a diabetic mother of small stature. During delivery, her baby suffered shoulder dystocia, leading to cerebral palsy. The obstetrician had not warned her of the risk, considering it unnecessary since the risk was statistically small and disclosure might lead mothers to request caesarean sections contrary to professional preference.

The Supreme Court unanimously held that the doctor’s failure to disclose the risk constituted negligence. Rejecting Bolam in the sphere of informed consent, the Court declared that:

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo… The doctor is… under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”²

This formulation placed autonomy at the centre of medical law, recognising the patient as an active decision-maker rather than a passive recipient of professional judgment.

The Test of Material Risk

The Court in Montgomery characterised significant risk as one that “a reasonable person in the patient’s position would be likely to attach significance to,” or one that the doctor knows, or ought reasonably to know, would be important to the specific patient.³ By allowing clinicians to withhold information based on their own assessment of its significance, this patient-centred approach marked a significant shift from Bolam’s paternalism.

Human Rights and Ethical Underpinnings

The Montgomery ruling was also motivated by broader moral and human rights issues. The Court explicitly linked its reasoning to the principle of self-determination, connecting medical legislation with Article 8 of the European Convention on Human Rights[15] (ECHR), which protects the right to private life. ⁴ Lord Kerr and Lord Reed said the step represented “a fundamental change… in society’s view of the relation between doctors and patients.” ⁵ Scholars like Montgomery and Montgomery[16] said before that it was a case that the consent theory in the UK had been trailing behind global trends towards autonomy and dignity. ⁶ By framing the disclosure duty as one of respect for autonomy, the Supreme Court set the legislation in the context of these ethical and comparative trends.

Academic Reception

Scholarly comments on Montgomery have, for the most part, supported the decision’s reorientation of legal doctrine. Miola[17] describes the judgment as a “revolution in medical litigation,” saying Bolam has been radically superseded in the area of consent.⁷ Mason and Laurie[18] also argue that this case has to be seen as part and parcel of a fundamental adjustment in medicine’s doctor–patient relationship.⁸ However, a substantial body of academic literature puts forward essential reservations about what the Montgomery rule means. Detractors argue that if doctors must diagnose and acknowledge all risks as such from the standpoint of a reasonable patient, this would result in a significant degree of uncertainty and change throughout medical practice. This has led to concerns that this move will erode legal certainty and place a greater burden on practitioners, particularly in cases where patient preferences are highly variable and context-specific. As Cave[19] points out, “the test of materiality remains fraught with ambiguity,”⁹ highlighting ongoing ambiguities in operationalising the patient-centred standard, as well as the potential for difficulty with consistent application under diverse clinical conditions.

Beyond Montgomery: Judicial Consolidation

Subsequent cases have confirmed the centrality of Montgomery. In Duce v Worcestershire Acute Hospitals NHS Trust[20][2018], the Court of Appeal clarified that while expert evidence remains relevant to determining what risks exist, the question of whether those risks are material is for the court, not the medical profession.¹⁰ This reinforces the principle that disclosure is patient-driven, not profession-driven.

Critical Analysis of the Montgomery Standard

Though its actual implications are still up for debate, the Montgomery case has been seen as a significant turning point in the recognition of patient rights. With an emphasis on academic critique, policy research, and clinical practice perspectives, this section evaluates the doctrine’s advantages and disadvantages.

Strengths: Autonomy and Patient-Centred Care

The strength of Montgomery is its overt acknowledgement of patient autonomy. Focusing on what patients would find significant rather than what physicians found important, the Court was able to recognise the moral dignity of self-determination.¹ The judgment is also consistent with previous international opinion, which, in Canada’s Reibl v Hughes[21] [1980], likewise highlighted the importance of disclosure of material risks.²

In fact, the decision has led to increased transparency in clinical practice. A report by the General Medical Council (GMC[22]) in 2017 noted that health professionals were becoming increasingly aware of the importance of personalised discussion methods, as opposed to relying on standardised consent templates.³ This has been appreciated as a first step to collaborative health care.

Weaknesses: Ambiguity and Practical Burdens

Montgomery, though, has created some misunderstanding. The material risk test prompts physicians to predict what a reasonable patient would want to know, which is, unsurprisingly, subject to change. Cave[23] notes there might be an inadequate message from doctors about how complicated risk can be from seeing lots of patients at NHS clinics, and this is why the “illusion of informed consent” continues. Moreover, constraints on resources are affecting the reach of Montgomery’s goals. An examination by the King’s Fund[24] in 2016 emphasised that therapists generally don’t have the time to undertake the lengthy one-on-one consultations that Montgomery requires. One issue with the approach is that it can promote “defensive medicine,” which allows doctors to disclose too much information in the hope of avoiding accountability and burdensome patients.

Health Inequalities and Patient Capacity

Furthermore, Montgomery’s definition of autonomy also presumes that patients possess the resources, knowledge, and ability to interact with risk information. O’Sullivan asserts that a person’s financial status, level of health literacy, and cultural background ultimately determine their level of autonomy. ⁶ Montgomery’s promise may not be equally fulfilled if patients with low health literacy or poor English proficiency are at a disadvantage. Consent-related claims have been steadily rising, according to the NHS Resolution Annual Report[25] (2021)[26], which suggests that patients continue to miscommunicate and misunderstand one another. (Ainsworth, 2023) The theory is likely to marginalise underprivileged communities while benefiting knowledgeable patients if these problems are not addressed.

The Risk of Litigation and Cultural Tensions

Stricter disclosure requirements for physicians may help explain Montgomery’s increase in lawsuits, according to some observers. That assertion is, however, largely unsupported by empirical evidence. A 2019 study published in the British Medical Journal (BMJ)[27] cautioned that there is still a high likelihood of disagreements over “material risk” but did not reveal a significant rise in negligence claims that were solely attributable to Montgomery. The decision to finally impose a cultural shift in medicine is the result of that. “The law can only set the stage; it cannot dictate the drama,” say Heywood and Miola[28]. Greater systemic changes in patient engagement support, training, and communication are necessary for Montgomery to reach its full potential.

Suggestions for Reform and Future Directions
Montgomery is a significant step towards recognising patient autonomy, but there are still many issues with applying its principles in clinical settings. Several changes and future strategies could enhance the law’s impact and ensure that it delivers true patient-centred care.

1. Clarifying the “Material Risk” Standard

Montgomery’s main problem is the idea of “material risk.” Although the Court placed a strong emphasis on patient-centred disclosure, its vague wording raises questions. Conflicts typically occur when people and clinicians cannot agree on what constitutes a significant risk, according to research published by NHS Resolution in 2021. A more precise definition of disclosure obligations may be found in legislative codification, such as the Australian Civil Liability Acts. Overprescription is a concern raised by critics, but clarity can shield providers from litigation and give them more trustworthy guidance.

2. Strengthening Communication Training

However, to achieve Montgomery’s patient-centred goals, effective doctor-patient communication must be developed, in addition to a philosophical reorientation. Due to systemic time constraints and a lack of practical communication skills, clinical studies indicate that patients often receive inadequate explanations for medical risks (King’s Fund, 2016). ³ (“Three challenges for clinical leaders in 2016,” 2016). All undergraduate, graduate, and continuing medical education programs must incorporate communication as a core element to close these gaps. Evidence-based training in risk communication techniques, active listening, cultural competency, and how to determine patients’ values and preferences is included in this.

 Recognising that accurate shared decision-making cannot be carried out under extreme pressure, healthcare organisations must also participate in structural changes that provide ample opportunities for patient engagement. The Consent Guidance (2020) from the General Medical Council[29] highlights the value of group decision-making. However, to ensure that compliance is more than just a formal requirement, efficient training, institutional support, and effective resource allocation are necessary. In clinical practice, such wide-ranging changes are essential to keeping Montgomery’s revolutionary goals from turning into pipe dreams.

3. Addressing Health Inequalities

Autonomy is only essential when patients can demonstrate it. The quantity of risk information that can be understood varies depending on socioeconomic status, language barriers, and health literacy. According to O’Sullivan, Montgomery runs the danger of perpetuating inequalities rather than eradicating them in the absence of focused assistance[30].  Increased use of interpreters, plain-language consent forms, and computerised decision-making tools are a few examples of such reforms. NHS England[31]‘s Shared Decision-Making Programme (2021) is a positive initiative; however, there are notable differences in its implementation. (“Shared decision-making”, 2021).

4. Mitigating Defensive Medicine

Doctors often express concern that Montgomery encourages defensive medicine, leading to excessive disclosures that confuse rather than empower patients. A cultural shift is required: disclosure should be framed as an opportunity for trust-building rather than a legal threat. Judicial reaffirmation that the doctrine requires relevant and meaningful disclosure—not exhaustive risk catalogues—could help reduce defensive practices.

5. Expanding Alternative Dispute Resolution

Litigation is costly, combative, and time-consuming. Increasing the use of alternative dispute resolution (ADR) could facilitate more successful dispute resolution. Apologies, learning from mistakes, and early interaction are all emphasised in the NHS Early Notification Scheme for Maternity Claims (2017)[32]. In addition to enhancing patient confidence, increased use of mediation and early resolution initiatives may reduce court workloads.

Conclusion

In conclusion, by placing patient autonomy at the centre of the theory of informed consent—a dramatic shift from the paternalistic framework established in Bolam—medical negligence law underwent profound changes following the Montgomery v. Lanarkshire Health Board[33] ruling. Montgomery has promoted shared decision-making in clinical practice and enhanced transparency; however, its overall success has been hampered by persistent issues, including the lack of a clear definition of “material risk,” time constraints for the entire system, pre-existing health disparities, and apprehension about defensive medical strategies. However, systemic improvements in the approach that we should be taking on several fronts, such as clinical communication training for clinicians, equitable resource allocation, and structural support for underprivileged patient groups, are necessary to realise the full normative and practical effects of Montgomery. Montgomery should not be viewed as the pinnacle of a new understanding of consent law, but rather as a pivotal point for ongoing, comprehensive professional, clinical, and interdisciplinary work to achieve truly patient-centred care. This is because legal, medical, and policy regimes are constantly changing and evolving.

Bibliography:

Cases

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QB).

Bolitho v City and Hackney Health Authority [1998] AC 232 (HL).

Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134.

Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, [2018] Med LR 393.

Donoghue v Stevenson [1932] AC 562 (HL).

Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430.

Reibl v Hughes [1980] 2 SCR 880 (Supreme Court of Canada).

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 (HL).

Legislations

European Convention on Human Rights, art 8.

Human Rights Act 1998.

Books

JK Mason and GT Laurie, Mason and McCall Smith’s Law and Medical Ethics (10th edn, OUP 2020).

John Keown, Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (CUP 2002).

Journal Articles

Margaret Brazier, ‘Patient Autonomy and Consent to Treatment: The Role of the Courts in Medical Law’ (1987) 50 Modern Law Review 337.

Emma Cave, ‘The Illusion of Informed Consent’ (2017) 25 Medical Law Review 76.

José Miola, ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2015) 23 Medical Law Review 455.

Jonathan Montgomery and Emily Montgomery, ‘Montgomery on Informed Consent: An Informed Choice?’ (2016) 11 Clinical Ethics 69.

Siobhán O’Sullivan, ‘Informed Consent and Inequalities in Patient Capacity’ (2019) 19 Medical Law International 123.

Reports

General Medical Council, Decision Making and Consent (GMC 2020).

NHS England, Shared Decision-Making Programme (2021) https://www.england.nhs.uk/shared-decision-making/.

NHS Resolution, Annual Report and Accounts 2020/21 (HC 2021).

NHS Resolution, Early Notification Scheme Progress Report (2019).

The King’s Fund, Patient-Centred Care: Improving Quality and Safety by Focusing Care on Patients and Consumers (2016).

General Medical Council, Decision Making and Consent (GMC 2020).

NHS Resolution, Early Notification Scheme Progress Report (2019).

News Reports/Commentary

 Owen Bowcott, ‘Landmark Judgment Bolsters Patients’ Rights’ The Guardian (11 March 2015) https://www.theguardian.com/law/2015/mar/11/landmark-judgment-patients-rights-informed-consent-montgomeryaccessed 26 September 2025.

  Clare Dyer, ‘Supreme Court Rules Doctors Must Ensure Patients Are Aware of Risks’ BMJ (2015) 350:h1414 https://www.bmj.com/content/350/bmj.h1414 accessed 26 September 2025.

Alex Matthews-King, ‘Montgomery Ruling Has Changed the Way Doctors Communicate’ The Independent (15 March 2018) https://www.independent.co.uk/life-style/health-and-families/health-news/montgomery-ruling-nhs-doctors-informed-consent-supreme-court-patients-rights-a8257966.html accessed 26 September 2025.

[1] [1957] 1 WLR 582 (QB)

[2] [1998] AC 232 (HL)

[3] [2015] UKSC 11

[4] [1957] 1 WLR 582 (QB).

[5] [1998] AC 232 (HL).

[6] [2015] UKSC 11, [2015] AC 1430.

[7] José Miola, ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2015) 23 Medical Law Review 455.

[8] [1957] 1 WLR 582 (QB).

[9] Margaret Brazier, ‘Patient Autonomy and Consent to Treatment: The Role of the Courts in Medical Law’ (1987) 50 Modern Law Review 337.

[10] [1998] AC 232 (HL).

[11] John Keown, Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (CUP 2002) 120.

[12] Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430.

[13] Ibid.

[14] Owen Bowcott, ‘Landmark Judgment Bolsters Patients’ Rights’ The Guardian (11 March 2015) https://www.theguardian.com/law/2015/mar/11/landmark-judgment-patients-rights-informed-consent-montgomery>accessed 25 September 2025.

[15] European Convention on Human Rights, art 8.

[16] Jonathan Montgomery and Emily Montgomery, ‘Montgomery on Informed Consent: An Informed Choice?’ (2016) 11 Clinical Ethics 69.

[17] José Miola, ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2015) 23 Medical Law Review 455.

[18] JK Mason and GT Laurie, Mason and McCall Smith’s Law and Medical Ethics (10th edn, OUP 2020).

[19] Emma Cave, ‘The Illusion of Informed Consent’ (2017) 25 Medical Law Review 76.

[20] Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, [2018] Med LR 393.

[21] Reibl v Hughes [1980] 2 SCR 880 (Supreme Court of Canada).

[22] General Medical Council, Decision Making and Consent (GMC 2020).

[23] Emma Cave, ‘The Illusion of Informed Consent’ (2017) 25 Medical Law Review 76.

[24] The King’s Fund, Patient-Centred Care: Improving Quality and Safety by Focusing Care on Patients and Consumers (2016).

[25] NHS Resolution, Annual Report and Accounts 2020/21 (HC 2021).

[26] NHS England, Shared Decision-Making Programme (2021) https://www.england.nhs.uk/shared-decision-making/ > accessed 26 September 2025.

[27] Clare Dyer, ‘Supreme Court Rules Doctors Must Ensure Patients Are Aware of Risks’ BMJ (2015) 350:h1414 https://www.bmj.com/content/350/bmj.h1414 accessed 26 September 2025.

[28] José Miola, ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2015) 23 Medical Law Review 455.

[29] General Medical Council, Decision Making and Consent (GMC 2020) https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/decision-making-and-consent accessed > 25 September 2025.

[30] Siobhán O’Sullivan, ‘Informed Consent and Inequalities in Patient Capacity’ (2019) 19(2–3) Medical Law International 123, 131.

[31] NHS England, Shared Decision Making Programme (2021) https://www.england.nhs.uk/shared-decision-making/.

[32] NHS Resolution, Early Notification Scheme Progress Report (2019) 4–6.

[33] [2015] UKSC 11