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.

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.

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

Related posts:

4 comments


  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.

Subscribe

Categories


Tags


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 consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid 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 Facial Recognition 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 home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit 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

Disclaimer


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: