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Letters New UK law on consent

Consent forms for “no surgery” as ramification of landmark ruling

BMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h1796 (Published 07 April 2015) Cite this as: BMJ 2015;350:h1796

Clarifying the Montgomery judgement

Many doctors have questioned the implications that the recent Supreme Court judgement of Montgomery – v Lanarkshire Health Board1 will have for the way they obtain consent from patients.

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."

Undoubtedly doctors will want to be aware of the judgement and to reflect on the way they tell patients about treatment risks as a result. However, rather than leading to a radical change in medical practice, as some have suggested, the judgement brings the law in line with current ethical guidance for UK doctors.

GMC guidance on consent2 has, since 2008, underlined the need to get patients' informed consent. It states that the amount of information about risk that a doctor should share with patients will depend on the individual patient and what they want or need to know. Doctors should focus their discussions on the patient’s individual situation and risk to them and are required to tell patients if an investigation or treatment might result in a serious adverse outcome, even if the likelihood is very small.

The new legal judgement 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. The assessment is therefore considered to be both fact-sensitive and sensitive to the characteristics of the particular patient.

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 and whenever possible discussions should happen in a place and at a time which helps this process.

The MDU has published further information in a BMJ blog. 2

Dr Caroline Fryar
MDU head of advisory services

1 Montgomery v Lanarkshire Health Board [2015] UKSC 11
2 Consent: patients and doctors making decisions together, GMC, 2008 paragraphs 28-36 http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_discuss...
2 http://blogs.bmj.com/bmj/2015/04/02/caroline-fryar-risky-business/

Competing interests: No competing interests

15 April 2015
Caroline Fryar
MDU head of advisory services
One Canada Square, London E14 5GS