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LEGAL ISSUES
Understanding patient consent processes
A legal ruling has highlighted the importance of ensuring patients are given sufficient information to make informed decisions about their treatment options. A surgeon can no longer be deemed to be ‘the sole arbiter of determining what risks are material to the patient’, but are clinicians fully aware of the legal implications when obtaining consent?
Patients have a fundamental legal and ethical right to decide what happens to their bodies. It is therefore essential that patients have given valid consent for all treatments and investigations. The Royal College of Surgeons (RCS) has warned that NHS Trusts risk facing a dramatic increase in the number of litigation pay-outs 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, clarified current understanding of patient consent. The Royal College of Surgeons has published new guidance that aims to help clinicians understand the shift in the law and its implications, as well as give them the tools to assist in improving their practice. 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 RCS is concerned that this bill could go up significantly if hospitals do not take the Montgomery ruling seriously. Traditionally, clinical practice in the NHS has considered that it is up to doctors 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 a doctor, might consider significant. In other words doctors can no
longer be the sole arbiter of determining what risks are material to the patient. For example, possible loss of sensation in the hand following bypass surgery may be a minor risk to one patient in comparison to the benefit of increased life expectancy, but a very important risk to another, and therefore material, depending on the patient’s lifestyle choices e.g. a pianist. 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.
Hospitals and medical staff are leaving themselves very vulnerable to expensive litigation and increased pay-outs by being slow to change the way the consent process happens.
FEBRUARY 2017
Mr Leslie Hamilton, a Royal College of Surgeons Council Member, said: “The RCS is very concerned that doctors and hospitals haven’t fully appreciated how much the judgment given in 2015 changed our understanding of patient consent. The watershed judgment in the Montgomery case shifted the focus of consent towards the specific needs of the patient. Hospitals and medical staff are leaving themselves very vulnerable to expensive litigation and increased pay-outs by being slow to change the way the consent process happens. “We cannot underestimate the psychological impact facing litigation can also have on doctors. It can do serious damage to their confidence in practice and their reputation. Doctors must protect themselves and their patients by ensuring the consent process is carried out properly.” General Medical Council (GMC) guidance already states that doctors should not make assumptions about the information a patient might want or need. However, until the
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