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Think of the Children: Liability for Non-disclosure of Information Post-Montgomery

Cave, Emma; Purshouse, Craig

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Authors

Craig Purshouse



Abstract

In 2015 the Supreme Court in Montgomery v Lanarkshire Health Board handed down a landmark decision on informed consent to medical treatment, heralding a legal shift to a more patient-centred approach. Montgomery, and the extensive commentary that has followed, focuses on ‘adult persons of sound mind’. We consider the potential claims that may flow from a failure to adequately inform children. We argue that the relevance of the best interests test blurs the boundaries between negligence and battery. Limitations on children’s rights to make treatment decisions for themselves impact on their potential to claim in negligence for non-disclosure and, conversely, enhance the potential relevance of the tort of battery. In paediatric cases, Montgomery raises expectations that the law is currently ill-equipped to satisfy. Tort law provides a legal incentive to disclose relevant information to children but limits the availability of a remedy.

Citation

Cave, E., & Purshouse, C. (2020). Think of the Children: Liability for Non-disclosure of Information Post-Montgomery. Medical Law Review, 28(2), 270-292. https://doi.org/10.1093/medlaw/fwz023

Journal Article Type Article
Acceptance Date Jul 27, 2019
Online Publication Date Aug 26, 2019
Publication Date Apr 30, 2020
Deposit Date May 30, 2019
Publicly Available Date Aug 26, 2021
Journal Medical Law Review
Print ISSN 0967-0742
Electronic ISSN 1464-3790
Publisher Oxford University Press
Peer Reviewed Peer Reviewed
Volume 28
Issue 2
Pages 270-292
DOI https://doi.org/10.1093/medlaw/fwz023
Keywords informed consent, medical law, children
Related Public URLs http://eprints.whiterose.ac.uk/147886/

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Copyright Statement
This is a pre-copyedited, author-produced PDF of an article accepted for publication in Medical law review following peer review. The version of record Cave, Emma & Purshouse, Craig (2020). Think of the Children: Liability for Non-disclosure of Information Post-Montgomery. Medical Law Review 28(2): 270-292 is available online at: https://doi.org/10.1093/medlaw/fwz023







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