The future of failure to warn in dentistry after Montgomery: Reflections from Australia

Abstract

The switch from the standard of the reasonable professional, to that of the reasonable patient in cases where it is alleged that a health professional has not imparted sufficient information to allow the gaining of valid consent, has created anxiety and confusion within the dental profession. The ruling in Montgomery v Lanarkshire Health Board is relatively young; there have been insufficient subsequent cases to truly allow a deep exploration of the real changes that the case will bring to the way dentistry and other health activities are provided. One way that light may be shone onto the significance of Montgomery is to examine the development of the law in this area from Australia. Australia and the UK share a common history and while each legal system is independent from the other, they hold significant influence upon each other's destiny. This article seeks to shed light on the true relevance of Montgomery to dentistry in the UK through examination of the Australian position towards the gaining of valid consent which has enjoyed somewhat of a head-start in this area of the law.