I read with interest the editorial from Chrimes et al. on informed consent 1. The Montgomery case and judgment 2 have had profound consequences for shared decision-making and informed consent in healthcare, both for individual procedures and pervasively. It is axiomatic that judges do not make law (and they did not do so here); rather they affect its development through their powers of interpretation. This process may make implementation in practice more, or less, problematic. Whilst many would argue the Montgomery case achieved the former, subsequent decisions have arguably indicated the latter. For example, Bilal and Malik vs. St George's University Hospital NHS Foundation Trust 3 and McCulloch vs. Forth Valley Health Board 4 deal with whether knowledge of alternatives would alter a patient's decision to proceed with treatment – an extant factor in clinical negligence. Drawing a line between paternalism and respecting autonomy can be challenging, especially given the information and power asymmetry in healthcare settings, along with the inevitable vulnerability of the patient and the influence of institutional protocols. I am grateful to Chrimes for sharing a video (https://vimeo.com/simpact/consent) in which he roleplays a process for obtaining informed consent. With the caveat that no single approach will work for every patient and that inevitably this means the issue is pushed further up the line, I feel it strikes a fair balance. His technique, if applied generally, would likely meet the requirements for informed consent in appropriate cases. As it shows, this need not be complicated and involves commonsense and effective communication. The courts use the word ‘reasonable’ repeatedly in judgements on informed consent. Whilst ‘reasonable’ is arguably meaningless until it has been interpreted by the courts, it indicates that the quality and quantity of the subject matter is limited. It does not serve patients well to overwhelm them with technically difficult material and a huge range of options, which may lead to confusion and patient disengagement. Practising medicine defensively serves no-one's interests. The summary provided in the editorial gives an excellent overview 1, but I would emphasise also that clinicians should set aside their own preferences (they may be interpreted as coercive), check that the patient has understood what has been said and document it well. Chrimes et al. suggest that informed consent should be an ethical as well as (or rather than) a legal process. However, the argument that Montgomery sets unrealistic expectations, so that clinicians feel bound to adopt an approach which results in patient autonomy being undermined, is an overreaction. The law can never act purely in the interests of individuals, it must always be applicable generally, while the duty to act in patients' best interests is personal and rests with those who owe them a duty of care. Furthermore, the law, while dynamic, is almost always reactive. Expecting it to change to fit a particular narrative is likely to end in disappointment. The wheels of justice grind slowly and, for meaningful change to occur, it is necessary for appropriate litigation to arise and to come before a senior court. In negligence, most cases raise no significant legal principles, so it could take many years for change even to be possible. Clinicians therefore need a process for obtaining informed consent in the present legal climate. I would submit that the commonsense approach suggested in the editorial with its adherence to the law, combined with support for patient autonomy, indicates a way forward.
Valerie E Humphreys (Thu,) studied this question.