New guidance on surgical consent

  • Date: 27 October 2016

NHS trusts face a dramatic increase in litigation payouts if they do not make changes in patient consent processes prior to surgery, warns the Royal College of Surgeons of England.

The College believes that clarification is needed in the understanding of patient consent in light of the 2015 landmark judgment given in the Supreme Court case of Montgomery vs Lanarkshire Health Board. To this end the College has published new guidance that aims to help doctors and surgeons understand the shift in the law and its implications, as well as give them tools to assist in improving their practice.

The NHS Litigation Authority (NHSLA) paid out over £1.4 billion in claims on behalf of NHS trusts in England during 2015/2016 and the RCS is concerned that this bill could go up significantly if hospitals do not take the Montgomery ruling seriously.

The Montgomery ruling set a legal precedent changing how doctors must communicate risk to patients. The court held that patients must now be made aware of any and all risks that they – not the doctor – might consider significant. Doctors can no longer be the sole arbiter in determining what risks are material to the patient.

Mr Leslie Hamilton, a Royal College of Surgeons Council Member, 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.

"We cannot underestimate the psychological impact facing litigation can also have on doctors. It can do serious damage to their confidence in practice and their reputation. Doctors must protect themselves and their patients by ensuring the consent process is carried out properly."

Link: Consent - Supported decision-making 

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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