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The Issue with Medical Consent

• Mar 30, 2023
• Latest Journal

UK law on consent has changed considerably since 1957 and the case of Bolam v Friern Barnet Hospital.  Following this case, the “Bolam test” stated that if a doctor reached the standard of a responsible body of medical opinion then they would not be considered negligent.  The law was qualified in 1997 in Bolitho v City and Hackney Health Authority where the House of Lords held that there would have to be a logical basis for an opinion, and that a Judge would be entitled to choose between two bodies of expert opinion and reject an opinion what was logically indefensible.

In 2015 the law relating to informed consent changed with case of Montgomery v Lanarkshire Health Board. Following this case doctors are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment.  Furthermore, the test of materiality is whether a reasonable person on the patient’s position would be likely to attach significance to the risk or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to it.

Many commentators (and doctors) consider that this has set a very high bar for doctors seeking informed consent from patients.  A significant part of the issue in my opinion is reaching an understanding of what the patient on the other side of the desk would reasonably want to know about the procedure, or what complications any particular patient would be “likely to attach significant to”.

In the medicolegal setting the range of consent practice is highly variable.  In my experience a number of factors would facilitate the Defendant in rebutting an allegation of breach of duty with regard to informed consent

 •  Document the discussion of the intended treatment in the medical notes in detail.  Comments such as “I spoke to him about his forthcoming procedure” cover a multitude of possibilities and also leaves the Claimant able to state that he wasn’t properly informed about the procedure.  Make sure that the clinic letter reflects all of the discussion with the patient and sets out the likely complications of the procedure

 •  Provide an information sheet about the procedure.  If this is a procedure specific leaflet then so much the better.  Document in the medical notes that you have given the leaflet and if it lists the known complications of the procedure then document these as well in the clinic letter, and document that these have been explained to the patient

 •  Make sure the consent form is filled out in detail.  In my experience in medicolegal cases the “indication for the procedure” box is frequently left blank, and often the complications section as well.  If time permits (and it often doesn’t) then best practice suggests that the consent form should be completed in clinic, in advance of the procedure

 •  If written informed consent is taken on the day of surgery (and it often is) then ideally this should be by the surgeon performing the procedure.  At the very least the doctor taking consent should be fully cognisant with the procedure being performed, and the likely complications

Having such documentation available in the notes will not prevent an allegation of breach of duty with regard to informed consent, but it will make it much clearer to the legal teams for both parties when it comes to preparing a report on the issue

Chris Dawson
January 2023