The Royal College of Surgeons (RCS) has warned its members of a dramatic increase in the number of litigation pay-outs made if changes are not made to consent processes before surgery.
The RCS published new guidelines for surgeons earlier this week, instructing doctors to ensure that patients are aware of any and all risks that could possibly be considered “significant”. The guidelines instruct doctors to make no assumptions about the information a patient might want or need; the patient should be the one to decide which risks are material.
According to the NHS Litigation Authority (NHSLA), which handles medical negligence claims on behalf of hospitals, NHS trusts in England paid out more than £1.4 billion in claims during 2015/2016.
It had been standard practice for doctors to decide which risks they would communicate to patients, but a recent court ruling has forced the RCS to change its guidelines.
In the 2015 Supreme Court case Montgomery vs Lanarkshire Health Board the notion of informed consent was clarified, and the seven judges presiding over the case – 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.
The case involved a woman, Nadine Montgomery, whose son 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.
“Hospitals and medical staff are leaving themselves very vulnerable to expensive litigation and increased pay-outs by being slow to change the way the consent process happens”, said Mr Leslie Hamilton, a Royal College of Surgeons Council Member.
Yet some doctors are concerned that the changes prevent doctors from offering valuable, expert advice. “This new guidance raises a number of questions”, GP Ann Robinson wrote in The Guardian. “Is it “paternalistic” for a doctor to offer an opinion? And what if you genuinely want to know what the doctor would do if faced with the same choices?”
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