The evolving nature of medical consent

12 Mar 2018

By Dr Catriona Barlow, Scottish Clinical Leadership Fellow.

Every year the Collins Dictionary announces its ‘word of the year’ and over the last three years these have been ‘binge watch’, ‘Brexit’ and ‘fake news’. A word that has dominated the world of medicine over that time is ‘consent’. The conversation around consent has been moving away from the model of medical paternalism to patient-focussed collaboration for many years but the final UK Supreme Court ruling on Montgomery v Lanarkshire Health Board in March 2015 still sent shockwaves through medicine. Combines this with the scandal of Mr Ian Paterson’s surgical practice and the drive within Realistic Medicine towards truly personalised, patient-centred care and you can see that the landscape of consent is changing.

The details of the Montgomery case are well known and have been widely reportedly. In 1999 Nadine Montgomery, a first time mother with type 1 diabetes and a short stature, suffered complications during her son’s delivery as his shoulders became stuck and he was born with severe disabilities as a result. The question arose of whether the risk of this complication occurring had been discussed during the pregnancy and whether all alternative reasonable options had been offered. In this case the alternative would have been delivery by Caesarean section.

The Montgomery ruling has shifted the legal test that applies to consideration of medical negligence with regards to consent rather than introducing new legislation. This shift brings the legal test in alignment with the professional guidance from the GMC that predates the ruling. The standard test of medical negligence is whether a doctor has acted in accordance with accepted standards of practice that are deemed appropriate by a reasonable body of medical opinion. To put it another way, if there are other reasonable doctors that would have followed a particular course of action then it would not be deemed to be negligent. If, when discussing risk, a body of reasonable doctors would not discuss a risk that happens in one in a hundred thousand cases then that would have failed the medical negligence test.

The Montgomery ruling alters the discussion towards ‘material risk’ and this test of materiality rests on whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”(1). The focus therefore lies with the patient and their particular viewpoint, requiring a personalised discussion with each patient to assess what would be deemed a material risk to them. The only way to know how a patient will view each risk is to have a conversation about them.

This supports the fact that consent is far more than a signature or a piece of paper. Consent is an ongoing process and requires interaction. One response to the ruling could be to reel off ever lengthening lists of risks but there is still a need to direct the patient through all the information and help them process it. The patient needs to understand the information that is being presented to them.

Clinicians have expressed anxiety about how you identify material risks, where the time can be found and whether patients will be scared by these discussions and choose not to have treatments.

That’s why we are pleased to be holding an event at the College on at 6pm on Tuesday 13th March to air and explore some of these concerns. Lauren Sutherland QC, a member of the legal team that represented Montgomery, David Stephenson QC, Dr Anthea Martin, Joint Head of the Medical Division at the MDDUS, and Mr Roddy O’Kane, consultant neurosurgeon, will discuss the ruling and its implications. The outcomes of these discussions will shape work that is being done by the College around consent and how we can support our members and their patients.

With the aim of supporting medical students and junior doctors to navigate these ethically complex areas around consent, work is also being done to create elearning resources on consent and how these more personalised discussions can be done well to the satisfaction of both doctors and patients.

Developing modern approaches to obtaining and recording medical consent is good for clinicians, good for the NHS, and ultimately best for our patients. I’m delighted to be working with the College to drive this agenda forward.

To secure your tickets for this event, please email melanie.chambers@rcpsg.ac.uk.

(Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430.)

Category: Workforce