NHS ‘very vulnerable’ to litigation due to slow patient consent reforms

NHS trusts are failing to respect new standards on patient consent, putting them at risk of a significant increase in litigation pay-outs, the Royal College of Surgeons (RCS) has warned.

The RCS said the NHS had not taken on board the significance of last year’s Montgomery v. Lanarkshire Health Board ruling in the Supreme Court, which meant that doctors and surgeons must inform patients of all risks of a given procedure, even if the doctor does not consider the risk significant.

In Montgomery v. Lanarkshire Health Board, Nadine Montgomery was awarded £5.25m after shoulder dystocia occurred during the birth of her son in 1999, leading to him developing cerebral palsy. The court upheld Montgomery’s claim that she should have been informed that she had a 9-10% risk of shoulder dystocia during labour, as this would have led her to request a caesarean.

Leslie Hamilton of the RCS council 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.”

Trusts in England already paid out £1.4bn in compensation claims last year at a time when they are struggling to achieve sustainable finances, prompting warnings from the Medical Defence Union that the NHS may be facing a “compensation crisis”.

Hamilton also warned today that there was a danger of seeking a patient’s consent becoming a “paper tick-box exercise” as hospitals struggle to cope with the “huge pressure” of record numbers of patients.

“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,” he said.

He added that lawsuits could cause doctors psychological harm by doing “serious damage” to their confidence in their practice and reputation.

General Medical Council (GMC) guidance already says that doctors should not make assumptions about the information a patient might want or need. However, before the Montgomery case clinical practice and case law followed a more paternalistic approach, based in the Bolam principle – which states that doctors are the best judges of what constitutes reasonable care in negligence cases and what risks should be communicated to the patient.

The RCS has prepared a guide to the new consent standards and podcasts with dramatized case studies, which are available here.

It argues that surgeons should get to know their patient sufficiently to understand their patients’ views and values, and support them in making decisions about their treatment.

For consent to be valid, it must be given by a person with the capacity to make the decision in question, voluntary, informed and confirmed in writing.

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