Obtaining valid patient consent is one of the most fundamental pre-operative responsibilities of surgeons. In 2015 there was an important development in the UK case law – the now well-known Montgomery decision – which resulted in a sharp increase in claims against healthcare professionals generally arising from the consenting process.
Since then we have been carefully monitoring legal and practical developments and gathering real-life case studies from Incision members and other specialist surgeons. Understanding the current legal landscape and the practical challenges will help surgeons keep their processes updated to promote good practice in obtaining consent. In turn, this should help prevent unnecessary claims or regulatory proceedings from arising in the first place and, provided it is properly documented, will make it easier to defend any claims that do arise.
As part of our commitment to protecting Incision members in a holistic way, together with DWF we have produced a short series of four guidance notes. They are intended to help busy Incision members by:
- Providing a recap and refresher on ‘where we have got to’ in legal terms over the past few years;
- Providing an in-depth reminder of the practical challenges that the legal developments have thrown up, with suggestions of how those challenges can be met;
- Providing ‘food for thought’ suggestions to help surgeons optimise any standard or template forms they may already use to support the process of good consent-taking, in the form of example outline documents;
- Providing information about real-life situations faced by Incision members and other specialist surgeons to illustrate the potential pitfalls and how to avoid them.
We think that this series is worthwhile even now, nearly four years after Montgomery was decided. We still regularly come across current examples of surgeons misunderstanding their obligations. We and DWF have assisted in recent cases where the surgeon simply omitted to warn of or consent for certain risks because they ‘didn’t want to worry the patient’, or thought that a risk was ‘pretty unlikely’ to manifest. All these matters required notification to the insurers, and some required fee refunds or compensation payments to resolve them, because the surgeons mistakenly used an approach to consent that is no longer legally acceptable.
After reading these guidance notes, Incision members should have a better understanding of:
- Why a ‘one size fits all’ approach to consent is now risky;
Why, in terms of valid consent, the patient must be able to decide when the surgery takes place as well as simply whether it goes ahead;
- Why consent has to be a process rather than an event;
Why the consenting process has to be recorded in writing;
- How the ‘patient pathway’ and the amount of control the surgeon has over the early stages of the patient consent process can affect the validity of the purported consent;
- How to design an optimal medical and social history questionnaire;
- How to design optimal documents for use in patient consultations.