Patients must understand options, says Royal College of Surgeons

Surgeons should stop being “paternalistic” and simply lay out all the options to “let patients choose” whether to undergo surgery, according to radical new guidance for medics.

The Royal College of Surgeons (RCS) has warned its 20,000 members that unless changes are made to the processes currently used to gain consent ahead of surgery, they could face a dramatic increase in the number of expensive litigation cases and compensation payouts. NHS trusts in England paid out more than £1.4bn in claims during 2015-16.

The new guidance follows a judgment last year from the supreme court in the case of Nadine Montgomery from Lanarkshire, whose son Sam has cerebral palsy. Montgomery was awarded £5.25m compensation because doctors did not explain the very small risk associated with a normal birth in her case – she is small and a type 1 diabetic.

Diabetic mothers can give birth to larger babies. One of the risks is shoulder dystocia, when the baby gets stuck during labour, which happened in Sam’s case. He was deprived of oxygen and suffered brain damage in 1999. Her obstetrician did not discuss that risk because it was small and did not offer a caesarean section.

Seven judges – an unusually large number because of the significance of the case – agreed that doctors must tell patients not only what they think they need to know but also the risks that might matter to the patient. “Up to now it has been the Bolam standard [from a 1957 case of that name] – what a responsible body of other doctors would do,” said Leslie Hamilton, a council member of the RCS. “This is a new standard. It is really about focusing on the ­individual patient. We now need to sit down and tell the patient all the other options and let the patient choose and not tell them.”

The implications for doctors are huge, said Hamilton, who said the supreme court ruling was a “real wake-up call”.

Lady Hale, one of the judges, also said that doctors must not discuss one particular treatment over other possible options. “It makes a lot of sense but we have never really done that,” said Hamilton. “We tell patients about a particular option and get them to sign the form.”

NHS practice has traditionally been to leave it to doctors to decide what risks to communicate to patients – in what the RCS called a more “paternalistic approach”.

The Montgomery case means that doctors will have to explain all the options to their patients, including the ones they themselves would not recommend, and let them choose for themselves.

It will also probably have to be the consultant rather than one of the junior doctors who talks through the options and finally gets the patient’s agreement. ­Hamilton says the consent form – often signed on the morning of surgery – will have to be replaced by “a decision-making record” for which the details of the discussion are written down.

Consent forms have never been strong evidence in court anyway, said Hamilton, because a signature does not prove that the patient had all the details of the risks and benefits of the operation explained fully to them in advance of surgery. “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,” he said.

“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 payouts 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.”

The RCS is also concerned that many NHS trusts are not allowing enough time for the consent process to be carried out properly during consultations. “The NHS is under huge pressure and seeing more patients than ever. It’s not hard to see how in many hospitals gaining a patient’s consent has become a paper tick-box exercise, hurriedly done in the minutes before a patient is wheeled into theatre for their procedure. Operating lists and consultation clinics are packed leaving little time for these important consent discussions,” said Hamilton.

Patients must understand options, says Royal College of Surgeons