In March 2015, the UK Supreme Court issued its judgment in Montgomery v Lanarkshire Health Board. In the words of the Royal College of Surgeons (RCS) that ruling "fundamentally changed the practice of consent". The RCS has now produced a detailed, step by step guide on obtaining informed consent – and a warning on the consequences of failure to comply.
An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and their consent must be obtained before commencing any treatment interfering with their bodily integrity. The doctor is under a duty to ensure that the patient is aware of any material risks and of any reasonable alternative or variant treatments.
The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is, or should reasonably be aware, that the particular patient would be likely to attach significance to it.
The RCS has warned that the NHS faces a dramatic increase in payouts if they do not make changes to the process for obtaining consent from patients. The NHS litigation authority paid out over £1.4 billion in claims during 2015/16. To prevent this from increasing, the RCS has published new guidance to assist surgeons. This includes a 10 step overview of how they should be conducting the consenting process.
Montgomery demonstrated that "doctor knows best" was no longer acceptable. It is clear from the warning published by the RCS that they do not consider that this clinician-centric approach has yet been eradicated.
The guidance highlights that one key factor is the lack of time for discussions on consent between clinicians and patients. Their 10 step overview includes explaining the options, time for the patient to deliberate, discussing patient views and checking their understanding.
Is this approach possible? As the RCS notes, "the reality facing surgeons in current practice is that time pressures can leave little opportunity to discuss at length the diagnoses or available treatment options." Time is short, clinicians are stretched, and patient demand is increasing. However, "this does not change the fundamental legal requirement that surgeons and doctors allocate sufficient time for a discussion". A failure to obtain informed consent will increase litigation, increase payouts and reduce the money in the pot to be spent elsewhere in the NHS.
Two changes are required. First, the RCS guidance notes surgeons may have to discuss the need for additional time with their medical directors. Secondly, all clinicians need to understand, and implement, the changes brought about by Montgomery. It is no longer acceptable to take a paternalistic approach to consent. It is the treating clinician's responsibility to ensure they have informed consent, no matter the demands on their time. Easy for us to say, much harder for them to do.
Montgomery Matters: The RCS Issues Guidance On Consent
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