Newsletter June 2021 – Emily Borhan
As medical professionals, you are aware that ‘consent’ is one of the most talked about issues in the medico-legal world. The leading case of Montgomery v Lanarkshire Health Board [2015 UKSC 11] changed the area of consent. It stated that a patient needs to be aware of all the necessary information to be able to properly provide their consent. It also made clear that a doctor is under a duty to take ‘reasonable care’ to ensure that the patient is informed of any material risks involved in proposed treatment.
How does this change in the law affect your duty as a doctor?
Historically, consent has been obtained prior to certain treatment such as surgery or medical intervention, typically by providing the patient with a document to sign just prior to their treatment. The Montgomery case changed this view and described consent as more of an informative process to be undertaken from the moment you first meet the patient. The Court explained that the role of a doctor during the consent process is to ensure that the patient understands the seriousness of the condition, the anticipated benefits of the proposed treatment and the risks it carries. They emphasised the importance of making detailed records of the information you give to, and discuss with, the patient. These important points demonstrate that consent is no longer about the patient merely signing a form before a procedure, but about the patient being aware of, and informed about, all risks, benefits and other considerations relevant to their treatment.
The GMC released new guidance on this area in November 2020. They have a detailed list of seven points that are, in their view, essential in the consent process. This guidance stresses the importance of making sure the patient is fully involved in the decision-making process from an early stage and advocates the sharing of information and an open dialogue between the doctor and the patient.
Does this mean the consent form is redundant?
In short, no. It is still necessary, wherever possible, for the patient to sign the necessary consent form prior to treatment; the additional requirements set out in the Montgomery decision build on this, rather than replace it.
The key is making sure that the patient actually understands what they are signing, that they understand the treatment they are having and how this will affect them. In order to make sure the patient is fully informed, it is important that they are given adequate time to consider the information they have received. It can be useful to provide the patient with leaflets and documents that they can take away with them. Having pre-operative appointments with the patient, to discuss the treatment, go over the consent form, and discuss any questions, would give the patient a chance to talk about the treatment with a clear mind.
It is important to remember that a patient completing and signing a consent form is not a substitute for a meaningful and individualised dialogue with the patient. In order for consent to be properly obtained, it is important that both elements (i.e. having a meaningful and individualised dialogue, followed by obtaining a duly signed consent form) have been covered.
In summary, we can see that the area of consent has changed quite considerably since the legal developments in the Montgomery decision. The steer away from the last-minute signature has now moved towards an emphasis on giving the patient the autonomy to make an informed decision, and with the GMC’s new guidance stressing the need to provide information and documentation it is clear that your role as a doctor is to ensure that your patient is fully informed prior to them signing the document. Rather than a one-off event, obtaining a patient’s consent should be approached as a process involving providing information, answering the patient’s questions and, where circumstances allow, giving the patient time to consider their decision to undergo the procedure or treatment.