Patient consent – the devil in the detail

The legal landscape has shifted in relation to clinical negligence claims that a patient’s consent was not properly obtained for treatment in light of the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The effects of this decision may be far reaching and mean that doctors need carefully to consider their processes for obtaining patient consent.

Before Montgomery, the ‘Bolam’ test was applied in cases dealing with patient consent, although some cases had called this into question. The Bolam test has long been the yardstick by which medical professionals are measured to establish whether they are in breach of their duty of care to a patient. The test is essentially whether another body of reasonable doctors in the same field would have acted in the same way.

Following the judgement in Montgomery, it has been confirmed that the Bolam test no longer applies to cases regarding consent, although Bolam remains the test that has to be met to establish that a doctor is in breach of duty in all other types of clinical negligence claims. This means that a doctor can no longer defend a claim brought against him that a patient’s proper consent was not obtained for a particular treatment (i.e that the risks were not fully explained) by proving that another body of reasonable doctors would have obtained consent in the same way and explained the same risks.

Cases have been successfully defended in the past on the basis, for example, that whilst a risk was not explained, the doctor did not need to do so as the risk was so small and a reasonable body of other doctors would not have mentioned this. Some considered this a paternalistic approach as doctors were upheld in making decisions as to what patients needed to know.

The Supreme Court in Montgomery set out that:

‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.

The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

The test of materiality is 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 be likely to attach significance to it.’

The only exceptions to this that the Court set out were where disclosure of certain risks would be detrimental to a patient’s health or in circumstances where consent is not possible due the urgency with which treatment is required. The extent of this judgement is yet to be tested but it leaves many questions. It appears conceivable that a doctor would be expected to explain every possible risk of a procedure to a patient as it is arguable that any risk could be relevant to a reasonable person. Montgomery makes clear that the risks that must be explained are not predicated upon the percentage chance of their occurring.

Accordingly, does a doctor need to explain a risk of a treatment which is so rare as to occur in less than 0.1% of cases? To what extent is a doctor under a duty to establish a patient’s personal circumstances in order to consider what risks would be material to them? In an already stretched health system there is an argument that the burden upon doctors in respect of the process needed to ensure proper consent is obtained is great. On the other hand, this is a move away from perceived medical paternalism and clarifies the legal position that patients must understand fully their medical treatment and that doctors have a duty to ensure this is the case.

Good relationships between patients and doctors are of course vital to the smooth running of our health care system and published dialogue is an important part of this.

Whether it will now be easier to bring claims in respect of consent remains to be seen but doctors can no longer rely on other clinicians to comment upon the suitability of their consenting procedure. The Court is now the arbiter of this.

In light of the Montgomery decision, doctors need to give consideration to their practices in respect of obtaining patient consent. Detailing the risks explained to a patient in paperwork is very important. Doctors are often assisted in respect of obtaining patient consent by providing letters / leaflets setting out the relevant treatment and its associated risks. A doctor is still under a duty to explain the relevant risks to his patient but leaflets are a useful tool. These documents may require review to ensure they include all relevant risks.

Many standard consent forms do not have sufficient room to set out a long list of risks and these may also need review. Updated training to medical professionals is also important to ensure that they are aware of their duties as set out by the Supreme Court.