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Observations Ethics Man

Update on the UK law on consent

BMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h1481 (Published 16 March 2015) Cite this as: BMJ 2015;350:h1481

Rapid Response:

Informed consent: a concept evolving with time and society (aided by judges)

Dear Editors

With your permission, I would like to point out the misconceptions that may have arisen from (and propagated by) Mr Michael Stone's assertions, which I believe is made from an erroneous basis.

Informed consent has never been and will never be a unyielding concept cast in stone. From its genesis in medico-legal proceedings (popularly attributed on PG Gebhard in a friend-of-the-court brief on behalf of American College of Surgeons to Salgo v Leland Standford Junior University Board of Trustees in 1957), it has been qualified in various definitions (including Bolam test itself) and now formalised in the latest incarnation in the judgement of Montgomery v Lanarkshire Health Board in which "material risk" and "reasonable person" is clearly set out as the basis of the the latest standard of informed consent.

No where in the Mental Capacity Act (2005) or its revisions has the legislation attempts to define "informed consent" beyond its basic constituent of "I inform, you consent", perhaps deliberately so to accommodate future versions of this concept.

At the risk of trivialising the discussion, I offer 2 examples of evolution of a concept over time:

1. There is always a need to conceptualise the building blocks of matter, from earth-fire-metal-water to fine grains of sand to small speck of visible granules to theory of atoms with the basic indivisible unit of matter. Then came technology that suggested neutrons and protons are not the smallest component of atoms with a multitude of massless particles which I am now no longer familiar with for the last 20 years

2. If informed consent is likened to a car, the Ford T-model its first popularly accepted incarnation (there has been various cars made before it but not widely taken up), then its evolution to Minor, T-bird and then Mustang, Datsun 240z, Corolla, etc.
There are various legislation with regard to approval of standard for use of cars in UK over the years but the latest ruling is akin to saying only new cars with Euro NCAP 4.5 and above can be sold. It does not mean the criteria to determine NCAP is fixed in time nor does it affect previous car already plying the streets.

Even para 107 of the Montgomery v Lanarkshire Health Board judgement suggested that it required the involvement (in part) of the 2008 Guidance provided by the General Medical Council in the hotchpotch of informed consent standard, it is formalised in a single case in its entirety.

Again, "material risk" significant to a "reasonable person"

To paraphrase previous authors: It's new, it's different, it's staying, deal with it.

Competing interests: No competing interests

27 March 2015
Shyan Goh
Orthopaedic Surgeon
Sydney, Australia