Informed Consent: The Medico-Legal Minefield

The GMC’s new “Decision Making and Consent Guidance” (link here) is due to come into force on 9th November. It is intended to support doctors in helping patients to make shared medical decisions which are right for them and builds upon the legal doctrine of informed consent introduced by the case of Montgomery v Lanarkshire Health Board  in 2015.

From a legal perspective, the guidance will work well for the majority of patients. It sets out a clear and concise framework for decisions making so as to ensure best ethical and, crucially, lawful practice. It does this by building on the principles of acting in good faith and in the best interests of patients and redefining what these mean in light of Montgomery.

If, then, doctors follow the guidance using a mixture of good practice, common-sense and sound professional judgement everything should be ok, right?

In most cases, the answer to this will be an emphatic “yes!” but there are, and there will always be, cases where the legal and medical circumstances are less than straightforward and the no-nonsense approach offered by a 40 page guide is less than sufficient. Shoe-horned into a handful of pages is guidance as to what to do when:

  • There are time and resource constraints.
  • There is an emergency.
  • The patient wants someone else to make the decision for them.
  • The patient is under duress.
  • You strongly disagree with the patient’s decision.
  • The patient lacks the capacity to make a decision.

Please make no mistake, the guidance offered is incredibly useful but it is not the be all and end all. It attempts to overly simplify what, in some areas, is an incredibly complex legal situation, not always very well.

Take, for example, the situation where the patient lacks the capacity to make a decision. The GMC guidance fits into just over 4 pages where the font is not particularly small. The guidance itself revolves around how to assess the patient’s mental capacity to make the decision in hand and what to do in their best interests if they don’t have it. Local Authorities employ Best Interests Assessors whose full-time occupation is to go around hospitals and nursing homes assessing the decision-making capacity of residents and then holding best-interests meetings to discuss the way forward. These people undergo weeks of training to obtain their BIA qualification and have to attend regular refresher training to remain updated on the rapidly changing and evolving case-law in this area.

The scary thing about this, to my trained legal eye, is that doctors (and their patients) could rapidly find themselves in a whole range of legal difficulties if they followed the guidance without any additional training.

Take, for example, the doctor who decides that a patient lacks the capacity to make a decision about an operation and decides that it is in the best interests of the patient to carry it out. In law, that doctor becomes the “decision maker”. If they then carry out that operation having failed to take proper account of the provisions of Sections 1 to 4 of the Mental Capacity Act 2005 (even if they did not know about them), they would be unable to avail themselves of any legal protection offered by Section 5.

This would render both the doctor in question and their employer liable to legal action, potentially in the civil and criminal courts. Why the criminal courts? Causing injury to someone without their consent is an assault. This applies to operations as much as it does to knife attacks in the street. If the assault results in permanent scarring it might even be treated at Grievous Bodily Harm, where the lowest starting point for any sentence is 3 years in prison.

It is even worse for doctors who carry out procedures on apparently non-capacitous patients at the request of others, without having satisfied themselves that the patient lacks the capacity to consent to them. In such cases, even if the patient did lack the capacity to consent, due to the wording of Section 5 Mental Capacity Act 2005 the doctor in question would be unable to avail themselves (and their employer) of any legal protection as they would not have the grounds to reasonably believe that the patient lacked the requisite capacity.

In short, this area is a complex legal minefield. The GMC guidance is incredibly useful and, frankly, not before time. It should though, at best, be taken as a handy beginners’ guide to informed consent and not anything more.

Max Duddles – Consultant, Senior Solicitor at Mander Cruickshank

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