In 2015, the ruling of the UK Supreme Court in the case of Montgomery v Lanarkshire Health Board fundamentally changed the practice of consent, shifting the focus of the consent discussion to the specific needs of each individual patient. The decision placed the onus upon the treating party to establish what factors were important to the patient, irrespective of how rare or unlikely they may be.
The most important extract from the judgement is as follows, “the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances, of the particular case, 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.
It had been felt for some time that patient autonomy was not been adequately considered and the GMC had pressed for a number of changes. The Royal College has now developed a guidance on consent – a copy of which can be downloaded by following this link: Consent: Supported Decision-Making – a good practice guide
Christian Beadell a senior solicitor in the Medical Negligence department at Fletchers commented on this: “The decision in Montgomery emphatically imposed changes upon healthcare providers in the UK and whilst the case was widely reported and commented upon at the time, the practical application of the decision was unclear. Since the decision, various approaches have been adopted by differing Trusts to try to give adequate effect to a patient’s individual and specific concerns.
However, an overriding guidance on Consent has been lacking and the recommendations from the Royal College of Surgeons are very welcome in that they will give patients a clearer indication of what they can expect and will promote a more consistent approach among Trusts in relation to consenting standards.
It is good to see that doctors are encouraged not to make assumptions on consent and are advised to accurately document discussions. I have been surprised that the usual consent form which has been in use for well over a decade has not seen any significant changes to accommodate a patients concerns and it is often the case that these aspects of discussions are poorly recorded.
This guidance must be taken seriously. A failure to do so would be likely to increase patient complaints and litigation. How a stretched NHS manages to incorporate the additional time to allow for fully informed discussions to take place during consultations will be crucial. With the mounting pressures on reducing clinic consultation times, whether these obligations can be met remains to be seen.”