A change to informed consent

The days when medical practitioners could assume their indemnifiers would permit them to remain in benefit and unlimited practice have long since departed.  High risk practitioners may find the benefits of membership are withdrawn – and buying indemnity elsewhere is challenging.  Without it, the GMC will not permit doctors to practice.

This means that medical practitioners, particularly surgeons, must take enormous care to avoid being sued.

In a recent case, Mrs Montgomery recovered damages not because her doctor was negligent in treating her, but because she was not counselled about the advantages of an alternative sort of therapy.  She was not offered an elective caesarean section even though her short stature and diabetic status meant she was at increased risk of shoulder dystocia.  The case turned not on whether it was negligent not to offer her a caesarean section, but on the failure to respect her autonomy by counselling her on the alternatives to a normal delivery.

The traditional model of consent to treatment has been interpreted as meaning doctors had to counsel a patient about any positive intervention they proposed and to obtain consent to a specific procedure.  The duty to counsel about the alternatives available has often been overlooked and unrecorded. Nobody signs a consent form to a non-invasive therapy.

It is not a bad starting point to suppose a Court will work on the rule of thumb that what is not written down probably did not happen. Doctors will struggle to persuade the Court, often years after the event, that they discussed matters with patients that they have failed to record in the clinical notes.

Some cases change the whole pattern of clinical negligence litigation in ways that are not intended by the Courts at the time. The traditional Bolam Test recognised the multiplicity of medical opinion and said that a doctor would not be negligent if he had acted in accordance with a responsible body of opinion. This meant in practice that an expert witness was simply required to demonstrate there was a recognised school of thought that would have acted as the defendant had acted.  In the 1990s the role of the expert was transformed when the House of Lords said that for the school of thought to be responsible, it had to stand up to analysis. This requires the expert not only to describe the intellectual landscape, but to then defend the school of thought in question. So having initially been a dispassionate witness who was there to describe the range of opinion, the expert became an advocate for the school of thought he was there to defend.

Montgomery v Lanark will be just as far reaching.  A doctor who is counselling a patient before a procedure cannot discharge the duty imposed by the law by getting the patient’s signature on a consent form recording the risk in question.  The law now demands that the patient be counselled in a way that will enable them to handle the information effectively and to take their own decision.

This means that the timing of the counselling, the time given to the process and the means used to convey the information will all come under close scrutiny.  The doctor is required not only to place all the information about the procedure and the alternatives before the patient that a reasonable patient is likely to want to know, but also to take cognisance of any particular features of an individual patient of which they are aware.  If you know that a given patient has a particular interest in some aspect of a case then you must respond to that particular interest constructively.  You must also counsel them.

All of this has implications for physicians as well as surgeons.  Where a GP refers a patient for an angioplasty, the cardiologists will have a duty to counsel patients about the full range of options available to treat ischaemic heart disease, including purely medical therapies and CABG.
Spinal surgeons will have a duty to advise about the options of physiotherapy, osteopathy and epidural blockade when offering spinal surgery.  Less obviously, osteopaths, physiotherapists and anaesthetists are likely to find that they have a duty to explain the potential advantages of surgery, even though these are not therapies that they offer themselves.

However, it is not only the range of options that have to be dealt with in counselling patients in this new era; it is also the time that is devoted to the process.  Montgomery reflects a profound secular change in the relationship between the doctor and the patient.  We now expect our doctors to be teachers and guides, as well as advising upon and performing procedures.  The doctor’s role is to empower the patient and guide them towards a longer and healthier life.  Those who fail to advise us to stop smoking or to moderate our drinking will fail to discharge their obligations. So much is conventional thinking today: however it is far from conventional for doctors to make adequate records of their discussion of other treatment modalities that they do not offer and do not think is appropriate for this patient.

In Montgomery, whilst the law may have just caught up with what good doctors were doing already, it has also raised the bar and will encourage even the best to reconsider their practice.  We may expect to see far more use of decision aids in which doctors encourage patients to access medical materials on the Web.  And we may anticipate that a greater proportion of most medical interviews will be diverted towards counselling the patient rather than taking a history or performing an examination.

The Brave New World continues to evolve.

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