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.

Have you got a story to tell? Would you like to become an NHE columnist? If so, click here.



There are no comments. Why not be the first?

Add your comment


national health executive tv

more videos >

latest news

View all News


NHS England dementia director prescribes rugby for mental health and dementia patients

23/09/2019NHS England dementia director prescribes rugby for mental health and dementia patients

Reason to celebrate as NHS says watching rugby can be good for your mental ... more >
Peter Kyle MP: It’s time to say thank you this Public Service Day

21/06/2019Peter Kyle MP: It’s time to say thank you this Public Service Day

Taking time to say thank you is one of the hidden pillars of a society. Bei... more >

editor's comment

25/09/2017A hotbed of innovation

This edition of NHE comes hot on the heels of this year’s NHS Expo which, once again, proved to be a huge success at Manchester Central. A number of announcements were made during the event, with the health secretary naming the second wave of NHS digital pioneers, or ‘fast followers’, which follow the initial global digital exemplars who were revealed at the same show 12 months earlier.  Jeremy Hunt also stated that by the end of 2018 – the 70th birthday... read more >

last word

Haseeb Ahmad: ‘We all have a role to play in getting innovations quicker’

Haseeb Ahmad: ‘We all have a role to play in getting innovations quicker’

Haseeb Ahmad, president of the Association of the British Pharmaceutical Industry (ABPI), sits down with National Health Executive as part of our Last Word Q&A series. Would you talk us throu more > more last word articles >


Mike Farrar, Swim England - Last Word

07/12/2019Mike Farrar, Swim England - Last Word

Mike Farrar Chairperson of Swim England Would you talk us through... more >

the scalpel's daily blog

Unappreciated Qualities of Leadership: Hope

17/02/2020Unappreciated Qualities of Leadership: Hope

Independent consultant and strategic advisor Dean Royles continues his series on The Unappreciated Qualities of Leadership. You can find links to his previous pieces here. ... more >
read more blog posts from 'the scalpel' >

healthcare events

events calendar


February 2020

mon tue wed thu fri sat sun
27 28 29 30 31 1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 1
2 3 4 5 6 7 8

featured articles

View all News