The approach of doctor knows best does not work any more – there is a legal reason for taking appropriate consent for treatment from patients. Ruth Hewitt writes

Ruth hewitt

Ruth Hewitt

Ruth Hewitt

A recent legal case has clarified the steps a doctor should take to obtain informed consent to treatment. Doctors should ignore this at their peril, as a failure to take appropriate consent is not only likely to lead to unhappy patients but places them at risk of successful legal claims.

In Montgomery v Lanarkshire Health Board (2015) UKSC 11 the Supreme Court found that the previous legal analysis of what was required to obtain appropriate consent was unsatisfactory.

Previously, the “Bolam test” was thought to apply to consent. This meant that the relevant test was whether the consenting process would be supported by a responsible body of medical opinion.

The standard of consent was therefore solely determined by medical opinion. Applying this test; there might be one group of doctors deemed responsible who would tell the patient nothing about the risks of a procedure, and this would satisfy the legal test meaning that it was not negligent to do so.

In Montgomery, the Supreme Court found that this was unsatisfactory. It ruled that an adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo.

Doctors are under a duty to take reasonable care to ensure that patients are aware of any risks that they would consider material, and of any reasonable alternative treatments.

The new test brings the law in line with General Medical Council guidance on consent, which encourages doctors to listen to patients and tailor their advice according to their views.

A patient-centred approach

The test for consent has been clarified so it is clear that the test is not what risks that a “reasonable doctor” would consider material, but what a “reasonable patient” would.

There are two concurrent tests for the material risks which should be discussed with the patient:

(i) An objective test; the patient must be informed of risks of the treatment to which a reasonable person would attach significance.

(ii) A subjective test; the patient must also be informed of risks to which they in particular would attach significance.

For example, the objective limb of the test may include common complications of the procedure, as well as less frequent serious risks.

Examples of risks to which particular patients may attach significance would be the rare possible complication of loss of hearing in one ear, when they had already suffered loss of hearing in the other ear. Or a very small risk of damaging the vocal cords during treatment would be of particular significance to a professional singer.

To discover what is important to them, you must get to know your patient. A genuine dialogue will also go a long way to ensure that a patient has realistic expectations.

Practical tips

Although the Supreme Court did not give detailed guidance, I suggest:

  • A signature on a consent form does not mean that adequate consent has been obtained, and if pro forma consent forms are used, they should only be a starting point for the discussion with your patient.
  • There must be a genuine two way dialogue to ensure you understand the patients needs in relation to consent
  • There should be a sensitive and frank discussion of the risks and benefits of the proposed treatment.
  • You should discuss alternative options, including that of not having the treatment
  • Avoid technical jargon, and medical language.
  • Tailor your discussion to the patient‘s needs, and take account of specific factors such as their age, family, and employment situation.
  • The patient will need to consider and understand the risks posed to them by the treatment and its alternatives. Unless it is absolutely necessary, this often means that they shouldn’t have treatment on the same day as the discussion about consent takes place.
  • If you are not able to communicate effectively with the patient, you should take steps to facilitate this, for example with the help of an interpreter because of a language barrier.
  • The doctor carrying out the procedure should obtain consent themselves if possible. It will often not be acceptable to delegate this to a junior doctor or a nurse, as they will not have the experience to be able to discuss the various risks to the extent required.
  • Make a careful note of the conversation in the medical records.

Exceptions

There are some exceptions to the requirement to disclose material risks to the patient:-

  • Where disclosure of the risk would in itself cause harm to the patient.
  • Necessity; for example if a patient is unconscious and requires life saving treatment.
  • The considered wish of a patient not to be told of a risk.

If a patient expressly states that they do not want the risks of treatment to be disclosed you should:-

(a) Decide whether there is a compelling need to disclose a risk.

(b) In the absence of the above, respect the patient’s wishes.

(c) Make a careful note of the discussion.

The law has been clarified so that a paternalistic approach to consent, where “doctor knows best” has been found to be inappropriate. The benefits of taking the time to get to know your patient and their concerns are clear, and go beyond ensuring you meet your legal obligations.

Ruth Hewitt is solicitor in the Medical Negligence Team at Bolt Burdon Kemp