Caroline Fryar: Risky business

caroline_fryarA UK Supreme Court ruling has implications for the way doctors obtain consent from patients, particularly the way they tell patients about the risks of any treatment.

The details of the judgment in Montgomery -v- Lanarkshire Health Board have been previously reported in The BMJ but doctors may be left wondering what practical implications this has for them when requesting patients’ consent.

The ruling focused on a doctor’s duty towards a patient when advising them about treatment options. While it introduces the doctrine of informed consent for the first time in UK negligence law as it applies to consent, ethical guidance for UK doctors has underlined the need to get patients’ informed consent for some time.

When discussing the benefits and risks of various treatment options with patients, the new ruling requires doctors to consider whether “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.” This supersedes the previous legal test for negligence that a doctor would not be negligent if the information given to a patient about a treatment or procedure was that of a responsible body of medical opinion, provided the standard was considered reasonable by a Court. The previous test arose from the cases of Bolam [1] and Sidaway [2] and the Court justified its decision on the basis of the change in the nature of the clinician/patient relationship since the case of Sidaway 30 years ago.

If this all sounds rather technical, it’s important to remember that the GMC’s 2008 consent guidance already encourages doctors to focus on the “individual patient and the risk to them” when getting consent and not to make assumptions about the patient’s understanding of risk. It states that doctors should discuss with patients side effects and complications that are particularly relevant to their case. The amount of information discussed will depend upon various circumstances such as the patient’s condition, general health, and the wishes of the individual patient but will range from common but minor side effects and complications, to rare but serious adverse outcomes. There is also the risk that the intervention does not result in the desired outcome so it is important to discuss with patients the option of taking no action.

The new legal approach recognises this individual approach to warning patients about risk. Rather than taking into account the percentage possibility of a risk arising, doctors need to bear in mind the significance of a given risk for that particular patient, and the nature of the risk, such as the effect it would have on the patient’s life if it were to occur.

As one GP recently put it in a Guardian article, when explaining people’s different approach to serious illness: “Some want to know everything … Others want to know very little. As a patient told me: ‘When my car’s broken, I drop it off at the garage and leave them to fix it. I want you to do that for me.’ Most people lie somewhere between the two. They want objective information, choices explained if there are any to be made, and an honest opinion from the expert as to what they would do in the same situation.”

Of course, for patients to be best able to retain and comprehend the information doctors should explain the risks and side effects of treatments in non technical language, using drawings or diagrams if appropriate, and whenever possible discussions should happen in a place and at a time which helps this process.

As a result of the judgment, making a detailed record of the information provided to the patient about the risks involved in proposed treatment is likely to be all the more important.

1) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
2) Sidaway v Bethlam Royal Hospital Governors and others [1985] 1 All ER 643.

Caroline Fryar is the head of advisory services at the Medical Defence Union.

Competing interests: I am head of advisory services at the MDU.