Informed consent: Surgeons respond to Montgomery

30 October 2016 by David Hart KC

On 27 October 2016, the Royal College of Surgeons issued some guidance (here) on obtaining consent in the light of the 2015 Supreme Court decision in Montgomery (judgment here, my post here).

The angle of the guidance is obvious, not simply addressed to its member surgeons, but to the NHS to persuade it to allow enough time for surgeons to consent patients properly. And the “steel” in its message was that there would be a significant hike in the bill which would be paid by the NHS for successful claims if consent was not taken properly in future.

Most readers will know the importance of Montgomery. It reversed Sidaway, 30 years before, which said that it was for doctors to decide how much to tell patients about the risks of treatment, and,  if what the patient was told was in line with what other doctors would say (the Bolam principle), no claim would lie. So, per 1980s law, the quality of consent should be determined by medical evidence rather than what the individual patient could reasonably expect to be told.

Montgomery strongly disagreed. Patients have their own autonomy. They differ in their appreciation of surgical risks, and the impact that the occurrence of the risk might have upon their particular lives. The point is well illustrated by an example in the RCS press release. Bypass surgery carries the possibility of loss of sensation in the hand, which may be a minor risk for many patients but very important to, say, a pianist. Why should a clinician be able to advise a patient in the abstract, without knowing whether they have a pianist before them?

Montgomery was an important decision, but, long before, the writing was on the wall for the paternalism embodied in Sidaway. As I pointed out in my last post, a series of court decisions during the late 1990s and 2000s (such as Pearce and Chester) had undermined Sidaway, and intervening guidance from the General Medical Council had recommended a much more patient-specific consenting approach. But the old-style formulaic giving of set information still guided many clinicians’ practice.

But the new consenting process comes at a cost – clinical time.  Shafi Ahmed, a cancer surgeon on the RCS council, thought that the decision had doubled the time he typically took to obtain consent, from 20 to 40 minutes. (The Times last week seems to have glossed this into a requirement that consenting should take 30 minutes). Why? – because to find out what was likely to matter to an individual patient required dialogue, not a surgical monologue. And you cannot get to know someone in a hurry. This consequence of the decision would have come as no surprise to the Supreme Court. As it pointed out at [93], it was important to impose such legal obligations

so that even those doctors who have less skill or inclination for communication, who were more hurried, are obliged to pause and engage in the discussion which the law requires.

But all this has wider implications. If you are repeating a set formula about a given procedure, you can be quite junior and may do it quite quickly. But if you are trying to get to know your patient and have to be ready with a full exploration of the options to the surgery (including the implications of doing nothing), you may well have to be more senior to do this properly, and your advice may have to be given further in advance of the the surgery. And the RCS guidance emphasises the importance of a fully evidenced information-giving process – not the old-style signature obtained by the junior doctor on a hastily-read pro forma shortly before surgery was to begin. Again, this will be no surprise to consultants proposing invasive and risky surgery – most of them have been doing this for years. A record of the discussion must be kept, with contemporaneous documentation of the key points, with hard copies or web links of further information provided, all of which should be done well in advance of any proposed operation date so that the patient can decide, without pressure, what to do.

Conclusion

Understandably, the RCS guidance presents the message of Montgomery as being new (with an implicit touch of “oh well, it is all the lawyers’ fault”). Certainly its legal clarity was new, but many surgeons would have been well ahead of the game in their practice prior to the decision. But the RCS guidance is well-expressed, and makes a strong point that NHS administrators will have to swallow when they budget for time for senior clinicians.

Surgeons cannot just be doers, they must be talkers. And if you talk in a hurry, either people misunderstand you or you don’t tell them enough – which may cost the NHS dearly when a not entirely unexpected outcome occurs. We are talking here not about surgical negligence (these things happen), but communication negligence.

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