Consenting a patient – you may not like it, doctor, but ……

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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.

[Who or what is medico-legal minder?  Terms and conditions apply]

Concerns continue as to the quality of medical reports (SRA Report October 2016)

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It is a sad fact that medical reports are still not of the quality demanded by lawyers, as revealed in a recent survey.

“There remain concerns [amongst solicitors] over the quality of medical reporting and even with the introduction of the MedCo system which was designed to remove conflicts of interest and improve the quality of medical reports. Only a quarter of those surveyed felt that MedCo had achieved its objective of independence. Whilst the principles behind MedCo were generally supported, the implementation was criticised. There were also criticisms over the depth of scrutiny required to remove poor quality medical reports (some felt the information contained in the reports was overly standardised or superficial).” – An Assessment of the Market for Personal Injury – A final report for the Solicitors Regulation Authority (October 2016)

Perhaps given the absence of any formal accreditation scheme for experts, or any required standards, that is not a surprising finding.  However the continuing disappointment amongst the end-users of medical reports even with MedCo reports highlights the inadequacy of the compulsory training and so-called ‘accreditation scheme’ imposed by MedCo for these low value claims.  And if that is the approach to raising the standard of medico-legal reporting in the ‘controversial’ field of whiplash injuries, what does that tell us about any system for raising the standard of reporting more generally?

‘Accreditation’ (others would call it ‘certification’) is achieved after 30 – 40 hours online, studying 9 modules and answering online questions (and paying the fee).  Of those modules, how many address the issues relevant to preparing a quality medico-legal report, and how is that approached? No lawyer can answer that question because information as to the detailed content of the training or as to the standards intended to be achieved by the training is not available, at least not for those not paying the fee and taking the training (such as end-users).  However one can only assume that somewhere in module 8 (law and procedure) there is some hint as to how to construct an effective report (the other 8 modules appear to address soft tissue injuries and methods of clinical assessment).

Any attempt to ascertain from MedCo or the MoJ what the course content and objectives are, and what the required accreditation standards are, is met with silence.  So there is no public information as to:

  • the defined standards which the course was prepared against
  • the defined standards which those following the training are required to demonstrate in order to pass
  • any defined course content.

It is hard not to conclude that there are no such standards.  And that no or little attempt is made to explain how to provide what a lawyer and the court need from a medico-legal report (‘the medico-legal mind‘) and to give appropriate training to that end (something which some of us have been providing for many years).

If anyone does obtain answers from MedCo to any of these issues, please do share them with those who are paying for the reports and relying on them for the conduct of litigation!  And with me!

A last thought:  much of the course is in relation to imparting learning on ‘whiplash associated disorder’.  ‘Accredited’ experts are expected to have learnt what they are taught and presumably to have applied it in expressing their opinions.  Should not the lawyers and injured claimants be entitled to know what it is their experts (whose opinions they are paying for) are being taught as fact, and therefore on what their opinions are based?

[Who or what is medico-legal minder?  Terms and conditions apply]