Keep it legal – informed consent

Montgomery five years on: how has the landscape changed for medical practitioners

In 2015 the Supreme Court handed down judgment in the case of Montgomery v Lanarkshire HA [2015] and effectively changed the understood legal definition of informed consent.

The doctor who is counselling a patient before a procedure or course of treatment will now be judged on whether they discharged duties imposed on them professionally and by the law, not by reference to what information a reasonable doctor would have imparted, but rather by reference to whether a reasonable patient has been provided with all information material to their agreement to such treatment. This advice has to deal with all of the realistic alternatives open to the patient, including those the doctor is not able or willing to perform.

Whilst the move was welcomed by many as bringing the legal duties of medical practitioners in line with long held regulatory professional standards, others feared that the newly defined legal obligation encouraged a defensive style of medical practice that shifted the focus from helping the patient to protecting the doctor. Five years on the full implications of this case are undoubtedly yet to be seen however, the handful of cases that have so far tested the principles laid down in Montgomery have fine-tuned the legal duties of the doctors and the expectations of the patient.

Medical practitioners have long been cautioned that as a rule of thumb, the Court will be likely to find that what is not recorded in a patient’s notes or subsequent clinic letters, probably did not happen. The Courts will be sceptical of witness testimony, which is often provided years after the event, that a doctor discussed matters with their patient which they then failed to record in the notes. The principle has been reiterated yet again in a recent case, where the Court found a surgeon to have breached their duties towards a patient (regardless of their skill in the operating theatre), as they were a poor communicator of risks. This conclusion was reached on the basis that although in his witness statement the surgeon stated that that he would have mentioned certain risks that he failed to record, because it was his usual practice to do so, he failed to mention those very same risks when he gave evidence in chief about the risks of the operation.[i] This situation can best be avoided if the contemporaneous records match what the surgeon’s usual practice is said to have been.

In the very same case, a signed consent form that quoted paralysis as a risk was deemed not to constitute informed consent as the patient said to have been rushed into signing the form without appreciating the full implications of the risks. The patient needs to understand the incidence or the frequency of the risk, as well as the likely severity on the facts, of their own case.

 Another recent case was settled out of Court because it was anticipated that the Claimant’s factual evidence would have been found more reliable than that of the treating surgeon, who was alleged to have failed to provide a risk benefit analysis of the different available treatment options.

Providing such risk benefit analysis is an integral part of a medical practitioner’s duty. This is complicated by the fact that before their surgical ordeal, many patients have little interest in hearing about the risks they have to take, and many doctors recognise and respect an obligation to protect them from the fear associated with such disagreeable realities. When things go well – as they do for most patients – the patients are grateful. In the minority of cases where things go wrong, the attitudes change dramatically and patients become obsessively interested in the details they failed to absorb through inattention.

The courts are only called upon to be the arbiters of whether a doctor has discharged their professional duties towards a patient in the minority of cases where things have gone wrong.  It is as though they view matters through the wrong end of a telescope:  the doctor may have a waiting room of 20 patients, 19 of whom may be expected to do very well, yet the court only judges what should have been said on the basis of the 20th case who suffered the 5% risk. In that context, it can be difficult to remember that a doctor’s role is not to overload their patient with information that they have no interest in hearing. Most patients do not want to hear about all the adverse risks and benefits, let alone those associated with all the other possible available private treatment options in the UK and abroad. Most doctors do not have time in the typical out patient clinic to provide such a discourse, still less to make a detailed note of what has been said.

The reality is that both doctor and patient need to ensure that the discussion of relevant information is held in a way to enable the patient to use it meaningfully. Montgomery has reflected a secular change in expectations that doctors will provide patients with some additional information as was already spelled out in guidance from the GMC. Now we have to organise medical services so that this duty can be discharged. Patients have to be persuaded to work harder to absorb information – the autonomous empowered patient cannot be a soft option.  We must not lose sight of a doctor’s role as a guide and counsellor as to why a particular treatment may ultimately be in a patient’s best interest despite all of the inherent risks.

[i] Hassell v Hillingdon Hospitals NHS Foundation Trust [2018]