Informed consent: Surgeons respond to Montgomery

30 October 2016 by

ec4e596da86038e44828eb708fa82e3dOn 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 Chesterhad 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.


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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. […] Read the full article from the Source… […]

  2. daveyone1 says:

    Reblogged this on World4Justice : NOW! Lobby Forum..

  3. Scotty says:

    As both a practicing doctor, and qualified lawyer, I have seen this coming for some years, however getting colleagues to listen, and accept that consent is not just a form is almost impossible.
    While what the RCS is saying is legally correct, as you point out it is not cost neutral, and that cost will be time. Lots of time.
    Most patients for surgery are now ‘pooled’ and come in on the day of operation. They may never have met the operating surgeon, and vice versa, and there is often only a hour between their admission and arrival in theatre. In these situations it is very easy to argue there will never be truly ‘informed’ consent, as any decision made will be under the duress of preparation for theatre.

    For those patients, the 30-40minutes of surgical time is impossible – usually there are 4 – 5 patients on a list lasting 5 hours. That would mean a 2 hour ‘discussion’ at best, and that is just for the surgery. As an Anaesthetist, we will have to spend a similar amount of time, as frequently the risks and damages possible from anaesthesia are greater than from the surgery.

    Even by going into the admissions unit as the patients arrive, I barely get enough time to see, discuss and document the minimum data required for my job before having to go and set up the theatre. I do a Pre-operative Assessment clinic for the sickest patients where 45 minutes is nominally allocated to each patient for just this sort of discussion and consent. It usually takes longer after relatives have their questions answered. To do this for every patient operated on will be impossible given the staffing and resources required.

    The law may be clear, but the implications for the NHS are huge, and not easily soluble.

  4. truthaholics says:

    Reblogged this on | truthaholics and commented:
    “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.”

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights conventions human rights damages Human Rights Day human rights decisions human rights news Human Rights Watch Huntington's Disease immigration Immigration/Extradition immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraq War Ireland islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: