The Royal College of Surgeons has recently issued written guidance on obtaining appropriate consent from patients in the light of the Supreme Court decision in Montgomery (RCS Guidance on consent (October 2016)). This is a comprehensive guide on obtaining proper consent in a variety of different situations and provides useful guidance for anyone, not just surgeons, involved in clinical treatment.
To comply with the law, to avoid civil claims for damages and to avoid investigation by the GMC most clinicians need to develop a change of approach and need to reappraise how consenting can most effectively be carried out by them in the particular circumstances of their practice:
‘With a robust and well-defined consent process, and by using patient decision aids, checklists and information leaflets provided in advance of the consultation, the time available can be optimised to ensure that patients are empowered with the information they need to make a decision and take responsibility for their care.’ (para 4.11)
Doctors worry about how they will find the time to comply with the Montgomery decision (and, I would add, should worry about how they comply with the existing GMC guidance on consent – ‘Consent: patients and doctors making decisions together’). The RCS recognises the issue and gives, as I have done, the correct uncompromising advice:
‘The reality facing surgeons in current practice is that time pressures can leave little opportunity to discuss at length the diagnoses or available treatment options. However, this does not change the fundamental legal requirement that surgeons and doctors allocate sufficient time for a discussion that will allow them to understand the individual patient and their needs. According to the judges in the Montgomery case, ‘even those doctors who have less skill or inclination for communication, or are more hurried, are obliged to pause and engage in the discussion which the law requires’.’ (para 4.11)
I am often asked by clinicians when speaking on consent and the implications of Montgomery how they can prove what in fact took place between doctor and patient so as to answer any subsequent criticisms. Paragraph 4.10 addresses this:
‘In addition to completing the consent form, surgeons should maintain a written decision-making record that contains a contemporaneous documentation of the key points of the consent discussion (see Section 4.1 for the information that needs to be provided) – and the patient’s decision, even if the patient decided not to undergo a procedure or have any treatment. This could be in the form of a letter to the patient and their GP/referring doctor. The record should also contain documentation of any discussion around consent with the patient’s supporters and with colleagues. Any written information given to the patient should also be recorded and copies should be included in the patient’s notes.’
Excellent advice. But now the clinician must ensure that the necessary records and documentary trail have been developed to produce such a ‘decision-making record’ as accurately and comprehensively as possible in the minimum of time.