Legal Update

14 October 2020
Recognising the legal landscape of informed consent“ The GMC’s new guidance on Consent 2020
The landscape of informed consent in the doctor-patient relationship was fundamentally re-developed in 2015 when the Supreme Court drove a bulldozer through the Bolam principle replacing it with a new patient focused view designed on “materiality“ in Montgomery v Lanarkshire Health Board [ 2015 ] UKSC 11. The General Medical Council acted as an intervener in Montgomery case.
Some 5 years after the ground breaking decision in Montgomery, and the plethora of cases that have followed, highlighting patient autonomy over “the doctor knows best“ paternalism approach, the GMC has issued new guidance entitled ‘Decision Making and Consent’ updating its earlier guidance on consent issued in 2008. The new guidance was published on 30th September 2020, and comes into effect on 9th November 2020 and is contained in a comprehensive 44 page document.
The guidance focuses on “the importance of meaningful dialogue, personalised communication about potential benefits and harms, and how doctors can support patients to make decisions with them about treatment and care“. The guidance is relevant to every health and care decision made with each patient and is to cover “decisions about treatments, procedures, interventions, investigations, screenings, examinations and referrals“.
It highlights the need to take a proportionate approach having regard to the specific circumstances of each decision. In this context, the guidance recognises that obtaining a patient’s consent “needn’t always be a formal time-consuming process “and that “while some interventions require a patient’s signature on a form, for most healthcare decisions you can rely on a patient’s verbal consent, as long as they’ve had the opportunity to consider any relevant information and decided to go ahead“. The key is in determining the proportionality boundary.
At the core of the updated guidance are the “seven principles of decision making and consent“, and Lawrencian in their perceived wisdom, namely:
- All patients have the right to be involved in decisions about their treatment and care and be supported to make decisions if able;
- Decision making is an ongoing process focused on meaningful dialogue, the exchange of relevant information specific to the individual patient;
- All patients have the right to be listed to, and given the information they need to make a decision and the time and support that they need to understand it ;
- Doctors must try and find out what matters to patients so they can share relevant information about the benefits and harms of proposed options and reasonable alternatives, including the option to take no action;
- Doctors must start from the presumption that all adult patients have the capacity to make decisions about their treatment and care;
- The choice of treatment or care for patients who lack capacity must be of overall benefit to them, and decisions should be made in consultation with those who are close to them or advocating for them; and
- Patients whose right to consent is affected by law should be supported to be involved in the decision-making process, and to exercise choice if possible.