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The debate about the decision in Montgomery reveals a much deeper malaise in which hospital practice has failed to keep pace with a silent revolution in medical practice. The use of a Form recording that a patient consents to undergo an operation distracts doctors from the real problem, which is that patients need to undergo a formal training process to take any major decision about their healthcare. This training needs to be recorded for medical as well as legal reasons. It applies to decisions to use conservative therapy as well as surgery. The author describes what such a process might look like and how proper defensible records could be made.

Medical authorities have historically either been silent or circumspect about the role of candour in clinical relationships. Hippocrates told doctors to abstain from doing harm, not entertaining the possibility that they might be negligent, while in 1847 the American Medical Association declared that doctors have: ‘a sacred duty … to avoid all things which have a tendency to discourage the patient and depress his spirits’. Being candid about an injurious mistake in the course of treatment would no doubt discourage even the worldliest of 19th century patients. However, in recent years, the focus has shifted: doctors in 21st century have an obligation to disclose even the most depressing of mistakes. This modern ‘duty of candour’ is found in a mish-mash of moral principles, regulatory guidelines and contractual agreements but following the Francis Report it will be buttressed by statute.

When I demitted office as Secretary of the Society 25 years ago, the medico-legal world was a placid place. It is true that medical members were already looking slightly askance at the lawyers: the medical defence organisations had abolished life membership and we had already had the first contested cerebral palsy case in Whitehouse v Jordan. The fact that the defendant won that case seems a comparatively insignificant incident of history, since it has set the template for so many others. The surprising thing is that brain damaged babies should account for two-thirds of all damages: then as now , the record medical damages are for an injured adult, but the figure then was about £230,000 where it is now over £12 million: a 50 fold increase, whilst the inflation table has gone up three fold, mainly because of the greater cost of care regimes. However, it is not in the growth of clinical negligence that the most important developments have come. Perhaps courtesy of Lord Woolf and the Legal Services Commission, litigants have been chased away from the seat of judgment and clinical negligence has shrunk massively as a proportion of the work of the medical lawyer. The role of the GMC has expanded, is expanding and ought to be diminished; the local disciplinary functions of the Trust are on a similar trajectory. The contraction of the knowledge base of the higher medical trainee and the newly appointed consultant at a time when there is far more to know, the diminished tolerance of failure coupled with the rising expectations of a society that chooses not to pay for the medical service it demands, all has contributed to that dysfunctional relationship which is to be the subject of my Presidential address in October. The medico-legal nexus is now an impor tant and worrying aspect of modern life. All of this makes it a fascinating time to take the Society’s helm for a spell. I hope that we will, in the course of the next two years, explore the difficulties that there are now in the relationship between medicine and the law and the ways in which the lawyers are contributing to the disastrous collapse in the relationship between society and medicine. The second theme of my tenure is going to be the implementation of our programme of internal reform at the Society. For reasons which have eluded us, the Society has failed to meet the expectations of its members during the 30 years I have been coming to meetings. For decades we have lined up programmes of speakers of enormous distinction who have come