New dimensions in patient consent to treatment

By John Tingle

In the patient care equation doctors  and nurses will always be in a more dominant and powerful position. They have the professional  knowledge the patient needs, they are in their usual environment. The patient is ill, not in their usual environment and is often thinking the worst about their condition. The law recognises the need to correct this power imbalance and cases have gone to court over matters such as patient informed consent to treatment. Modern cases emphasise the importance of patient autonomy against that of medical paternalism. In the House of Lords case of Chester v Afshar [2004] UKHL 41 involving consent to treatment failures, Lord Steyn stated:

“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.” (Para 16).

The focus of the modern day law and that of many professional health organisations policy development is on patient rights, trying to balance the unequal care equation.

The Royal College of Surgeons (RCS) have produced some very helpful guidance on consent to surgery. The guidance takes into account the landmark Montgomery case which was decided last year in the Supreme Court, Montgomery v Lanarkshire Health Board [2015] UKSC 11.The Montgomery case decided that the need for informed consent was firmly part of English law (and Scottish Law).The judges in this case made some important statements of legal principle regarding patient consent to treatment and the law’s expectations of health carers.

Lord Kerr and Lord Reed stated:

“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. (para 87)”.

The RCS guidance  focuses on Montgomery and sets out principles for working with patients through a process of supported decision-making and also takes account of other key guidance on consent issued by other professional bodies. The guidance aims to:

“Offer surgeons and other healthcare professionals practical advice on how to meet the legal and regulatory requirements around the consent process and how to protect a patient’s rights to make decisions about their treatment. “(p.4)

A number of key principles that underpin the consent process are stated and include:

  • The aim of the discussion about consent is to give the patient the information they need to make a decision about what treatment or procedure (if any) they want.
  • The discussion has to be tailored to the individual patient. This requires time to get to know the patient well enough to understand their views and values.

  • All reasonable treatment options, along with their implications, should be explained to the patient.

The Montgomery case and the RCS guidance both serve to help balance the care equation and advance patient’s rights.

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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