RCS warns surgeons on obtaining consent
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- Published: Tuesday, 08 November 2016 07:40
- Written by News Editor
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The Royal College of Surgeons has published new guidance for surgeons to help them understand the shift in the law and its implications, after a landmark judgment given in a Supreme Court case in 2015, Montgomery vs Lanarkshire Health Board, clarified their understanding of patient consent. The extent that this warning may apply to dentists is uncertain.
The Royal College of Surgeons (RCS) has warned that NHS trusts risk facing a dramatic increase in the number of litigation pay-outs made if they do not make changes to the processes they use to gain consent from patients before surgery. According to the NHS Litigation Authority NHS trusts in England paid out more than £1.4 billion in claims during 2015/2016 . The RCS is concerned that this bill could go up significantly if hospitals do not take the Montgomery ruling seriously.
Traditionally clinical practice in the NHS has considered that it is up to doctors to decide what risks to communicate to patients. The court in the Montgomery case changed this and held that doctors must ensure patients are aware of any and all risks that an individual patient, not a doctor, might consider significant. In other words doctors can no longer be the sole arbiter of determining what risks are material to the patient.
Patients have a legal and ethical right to decide what happens to their bodies and it is required that patients have given valid consent for all medical treatments and investigations. For consent to be valid it must be given by a person with the capacity to make the decision in question, voluntary and informed (based on appropriate information). Consent must be confirmed in writing.
Mr Leslie Hamilton, a Royal College of Surgeons Council Member, said: “The RCS is very concerned that doctors and hospitals haven't fully appreciated how much the judgment given in 2015 changed our understanding of patient consent. The watershed judgment in the Montgomery case shifted the focus of consent towards the specific needs of the patient. Hospitals and medical staff are leaving themselves very vulnerable to expensive litigation and increased pay-outs by being slow to change the way the consent process happens. We cannot underestimate the psychological impact facing litigation can also have on doctors. It can do serious damage to their confidence in practice and their reputation. Doctors must protect themselves and their patients by ensuring the consent process is carried out properly.”
Consent: Supported Decision-Making - A Guide to Good Practice explains the change in case law and the impact this has on gaining consent from patients. It offers a set of principles to help surgeons support patients to make decisions about their care and gives a step-by-step overview of how the consent process should happen.
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