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Doctor – patient consent: supported decision making

Posted on 3rd March 2017

The landmark ruling by the UK Supreme Court in Montgomery v Lanarkshire Health Board [2015] shifted the focus of the doctor-patient consent process away from a more paternalistic approach guided by the judgement of medical experts, towards a more patient centred method lead by the specific needs of the patient. This has fundamentally changed the practice of consent, and in light of the clarification provided by Montgomery, the Royal College of Surgeons (RCS) has published guidance on consent that sets out the principles for working with patients through a process of supported decision making.

In addition to producing a good practice guide, ‘Consent: Supported Decision Making’ the RCS has also made a series of podcasts to demonstrate the new principles in practice. You can read the full guidance and watch the podcasts here.

The guidance sets out a number of key principles in respect of the consent process to elective treatment, which including the following:

  • ‘The aim of the discussion about consent is to give the patient the information they need to make a decision about what treatment or procedure (if any) they want.
  • The discussion has to be tailored to the individual patient. This requires time to get to know the patient well enough to understand their views and values.
  • All reasonable treatment options, along with their implications, should be explained to the patient.
  • Material risks for each option should be discussed with the patient. The test of materiality is twofold: whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would likely attach significance to it.
  • Consent should be written and recorded. If the patient has made a decision, the consent form should be signed at the end of the discussion…’

The NHS is facing ever increasing pressure both in respect of its financial resources and growing patient numbers, and legitimate concerns have been raised about the time restraints placed on doctors and the effect this has on their ability to implement patient consent guidance. Nevertheless, the new guidance should improve understanding amongst doctors about their duties in respect of the consent process, help them to develop their practice and ensure they are providing a reasonable standard of advice for their individual patients.

For patients, the developments in respect of consent should lead to greater autonomy and give individuals the opportunity to make fully informed decisions about their treatment based on what is right for them, as an individual. This is welcome progression for patient rights, but only time will tell whether or not the new guidance will lead to increased patient safety and a reduction in litigation. In order for the new guidance to have the desired effect it will need to be implemented in such a way that supports doctors and patients alike.

Our Medical Negligence Solicitors are backed by nearly four decades of experience. Our legal practice and team of London Solicitors have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.