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
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.
After studying bioengineering and completing a PhD in the San Francisco Bay Area and a two-year postdoctoral research fellowship in London, Mark has spent the past four years analysing global health policy.
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