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



Cave, Emma ORCID: 0000-0002-3988-9068 and Purshouse, Craig ORCID: 0000-0002-0432-119X
(2020) Think of the Children: Liability for Non-Disclosure of Information Post-Montgomery. Medical Law Review, 28 (2). 270 - 292.

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Abstract

<jats:title>Abstract</jats:title> <jats:p>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’. Cave and Purshouse consider the potential claims that may flow from a failure to adequately inform children. They 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.</jats:p>

Item Type: Article
Divisions: Faculty of Humanities and Social Sciences > School of Law and Social Justice
Depositing User: Symplectic Admin
Date Deposited: 07 Jun 2021 15:47
Last Modified: 28 Aug 2021 00:13
DOI: 10.1093/medlaw/fwz023
URI: https://livrepository.liverpool.ac.uk/id/eprint/3125451