Claire Christopholus & David Locke provide an update on the assessment of hindsight in informed consent cases
- It is inevitable that the courts will continue to be faced by well-intentioned claimants who bring allegations in relation to informed consent which are unavoidably tainted with hindsight.
It is often said, with heavy irony, that hindsight is a wonderful thing when, in plain English what we really mean is that hindsight is a terrible thing. To borrow a well-worn line from Kurt Vonnegut: ‘Of all the words of mice and men, the saddest are, “It might have been.”’ Despite this, and particularly in light of the proliferation of claims alleging a lack of informed consent in the wake of Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] 2 All ER 1031, [2015] UKSC 11 the courts must concern themselves with the assessment of evidence given entirely with the benefit of hindsight. The decision of the Court of Appeal in Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585, [2019] All ER (D) 53 (Apr) provides
