The law on consent in England changed recently and according to a recent publication from the Royal College of Surgeons many doctors are unaware of these changes.
The Royal College also warns that the NHS faces a dramatic increase in the number of litigation payouts made if they do not make changes to the processes they use to gain consent from patients before surgery. The warning comes after a landmark judgment given in a Supreme Court case in 2015, Montgomery vs Lanarkshire Health Board, which clarified our understanding of patient consent.
According to the NHS Litigation Authority (NHSLA), which handles medical negligence claims on behalf of hospitals, NHS trusts in England paid out more than £1.4 billion in claims during 2015/2016. The Royal College is concerned that this bill could go up significantly if hospitals do not take the Montgomery ruling seriously. Up until now, clinical practice in the NHS has considered that it is up to the doctor to decide what risks to communicate to patients. The court in the Montgomery case changed this and held that doctors must ensure patients are aware of any and all risks that an individual patient, not the doctor, might consider significant. In other words doctors can no longer be the sole arbiter of determining what risks are material to the patient.
So what does this mean in practice? Well consent must be focussed on the individual patient. For example, the possible loss of sensation in the hand following dialysis surgery might be a minor risk to one patient but to another, such as a pianist it might be very significant and very material. Therefore, surgeons are now required to get to know their patient sufficiently to understand their patients’ views and values and support them in making decisions about their treatment. This is a move away from the paternalistic view that “the doctor knows best”.
Furthermore, guidance from the MDU indicates that doctors must be prepared to explain and justify their decisions and actions, especially if they depart from guidelines produced by a nationally recognised body, such as NICE. Doctors must keep a record of the reasons for their decision and their discussions with the patient.