The Royal College of Surgeons (RCS) has warned that NHS trusts risk facing a dramatic increase in the number of litigation pay-outs made if they do not make changes to the processes they use to gain consent from patients before surgery. The warning comes after a landmark judgment given in a Supreme Court case in 2015, Montgomery vs Lanarkshire Health Board, clarified our understanding of patient consent.
The Royal College of Surgeons has today published new guidance for surgeons that aims to help doctors and surgeons understand the shift in the law and its implications, as well as give them the tools to assist in improving their practice.
According to the NHS Litigation Authority (NHSLA), which handles medical negligence claims on behalf of hospitals NHS trusts in England paid out more than £1.4 billion in claims during 2015/2016 . The RCS is concerned that this bill could go up significantly if hospitals do not take the Montgomery ruling seriously.
Traditionally clinical practice in the NHS has considered that it is up to doctors to decide what risks to communicate to patients. The court in the Montgomery case changed this and held that doctors must ensure patients are aware of any and all risks that an individual patient, not a doctor, might consider significant. In other words doctors can no longer be the sole arbiter of determining what risks are material to the patient.
Consent: Supported Decision-Making – A Guide to Good Practice explains the change in case law and the impact this has on gaining consent from patients. It offers a set of principles to help surgeons support patients to make decisions about their care and gives a step-by-step overview of how the consent process should happen.
Clinical negligence practitioners and patient safety groups have welcomed the new approach to consent. However, the organisational challenge now facing the NHS is considerable. Clinicians already adopting the new guidelines report that typical consultation times have increased, often due to the need for a senior doctor with experience of a range of treatments to talk through the options in detail.
Kirsten Wall, partner in the clinical negligence department at Leigh Day, said of the RCS’s new guidelines: ‘This new approach to obtaining a patient’s consent is an important step away from the previous approach of ‘doctor knows best’ to allowing patients the opportunity to weigh up all the risks and alternative treatment options so they can make a decision that is right for them and their family’.