Documenting Informed Consent in Neurological Practice: Lessons for Expert Evidence

The Montgomery Standard in Neurological Practice

In neurological clinical negligence litigation, the adequacy of consent documentation is a pivotal factor in determining whether a breach of duty has occurred. The legal standard established in Montgomery v Lanarkshire Health Board [2015] UKSC 11 shifted the focus from the Bolam test—which assessed disclosure based on a responsible body of professional opinion—to a patient-centred approach. For the expert witness, evaluating whether a patient was sufficiently informed about material risks requires an objective analysis of the clinical record against the specific neurological context, such as the prognosis for elective spinal surgery or the risks associated with initiating long-term medication.

Under Montgomery, the focus is on whether the clinician took reasonable care to ensure the patient was aware of material risks, as well as any reasonable alternative or variant treatments. In neurology, materiality is fact-specific. A risk of cognitive impairment following a procedure may be viewed differently by a patient whose vocational life hinges on high-level executive function; the duty to disclose persists regardless of statistical probability if the risk would be significant to that particular patient.

Documentation and the Expert Witness Role

The duty of an expert witness under CPR Part 35 is to provide the court with objective, unbiased evidence. In disputes regarding informed consent, the expert’s role is to analyse the contemporaneous notes to identify whether the relevant material risks were communicated, rather than to act as an advocate for a clinician’s retrospective recollection. Solicitors who require specialised neurological assessments for civil proceedings rely on experts to highlight where documentation is deficient—for instance, in the absence of a recorded discussion regarding the side-effect profile of a proposed intervention or the long-term impact on functional prognosis.

Common Considerations in Medico-Legal Disputes

Disputes often arise from a mismatch between the procedure performed and the documented evidence of consent. Practitioners should consider the following areas of concern:

• Functional Neurological Disorder: Disputes may centre on whether the diagnosis was communicated with sufficient sensitivity and whether the potential for diagnostic uncertainty was discussed alongside clinical findings.
• Cognitive Capacity: In cases involving brain injury or neurodegenerative conditions, establishing whether the patient had the functional capacity to consent at the time of the decision is frequently contested under the Mental Capacity Act 2005.
• Driving and Regulatory Guidance: A failure to document discussions concerning the potential impact on DVLA driving standards can be a significant point of contention if the patient’s prognosis carries a risk of seizure recurrence.
• Causation: Establishing the but-for test requires a precise assessment of whether, even with full disclosure, the patient would have proceeded with the intervention.

Practical Guidance for Expert Instructions

To ensure robust expert evidence, solicitors should provide comprehensive bundles that include all contemporaneous clinical correspondence and nursing notes, as these often contain insights into the consent process. Under CPR Part 35, the expert’s report must state the substance of all material instructions. Clarity in the letter of instruction regarding the specific scope of the consent breach—whether it relates to the risks of a procedure, the failure to discuss alternatives, or a capacity assessment—allows the expert to focus the report on the clinical issues and the Bolitho requirement for professional opinion to withstand logical analysis.

Ultimately, the strength of the clinical evidence in a consent case rests on the contemporaneous record. While the absence of a note does not automatically prove a failure to disclose, it leaves the clinician reliant on oral evidence, which is inherently vulnerable in litigation. Providing experts with structured instructions and a full clinical chronology ensures that the resulting report is focused on the core issues of duty, breach, and causation.