Surgeons warn NHS failing to implement patient consent rules, risks facing increase in litigation pay-outs

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. The warning comes after a landmark judgment given in a Supreme Court case in 2015, Montgomery vs Lanarkshire Health Board, clarified our understanding of patient consent.

The Royal College of Surgeons has today published new guidance for surgeons that aims to help doctors and surgeons understand the shift in the law and its implications, as well as give them the tools to assist in improving their practice.

According to the NHS Litigation Authority (NHSLA), which handles medical negligence claims on behalf of hospitals 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.

For example, possible loss of sensation in the hand following bypass surgery may be a minor risk to one patient in comparison to the benefit of increased life expectancy, but a very important risk to another, and therefore material, depending on the patient’s lifestyle choices e.g. a pianist.  Surgeons are now required to get to know their patient sufficiently to understand their patients’ views and values and support them in making decisions about their treatment.

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.”

General Medical Council (GMC) guidance already states that doctors should not make assumptions about the information a patient might want or need. However until the judgment in the Montgomery case the perception within established clinical practice as well as a large body of case law followed a more paternalistic approach. This was reflected in the Bolam principle, which saw the judgement of medical experts as the main criterion for assessing reasonable care in negligence cases and for deciding what risks should be communicated to the patient for a chosen treatment.

The RCS is also concerned that many NHS trusts are not allowing enough time for consent to be gained sufficiently during consultations. Mr Hamilton added:

"The NHS is under huge pressure and seeing more patients than ever. It's not hard to see how in many hospitals gaining a patient’s consent has become a paper tick-box exercise, hurriedly done in the minutes before a patient is wheeled into theatre for their procedure. Operating lists and consultation clinics are packed leaving little time for these important consent discussions.

“Patients must be given enough time to make an informed decision about their treatment and hospitals are going to have to give serious thought to how they plan in time for these discussions.”

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.

The RCS has also produced a series of podcasts with a dramatised case study commentary by senior surgeons and a patient to support a cultural shift in the way doctors think about consent and how they apply it in practice.

Notes to editors

The Royal College of Surgeons of England is a professional membership organisation and registered charity, which exists to advance surgical standards and improve patient care.

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