A survey of doctors at a UK teaching hospital to assess understanding of recent changes to consent law

Challenge of achieving truly individualised informed consent in therapeutic endoscopy

Objective

Guidance covering informed consent in endoscopy has been refined in the UK following the obstetric case of Nadine Montgomery, and in light of updated General Medical Council guidance. All risks likely to be material to the patient must be explored, as well as alternatives to the procedure. Despite this, departments and endoscopists still struggle to meet the current standards. In this article, we explore the challenges encountered in achieving individualised consent in therapeutic endoscopy through real-life scenarios.

Methods

Five realistic therapeutic endoscopy (hepatobiliary) scenarios are described, followed by presentation of possible or ideal approaches, with references related to existing literature in this field.

Results

The vignettes allow consideration of how to approach difficult consent challenges, including anxiety and information overload, urgency during acute illness, failure to disclose the risk of death, the role of trainees and intraprocedural distress under conscious sedation.

Conclusions

The authors conclude that a high degree of transparency is required while obtaining consent for therapeutic endoscopy accompanied by full documentation, involvement of relatives in nearly all cases, and clarity around the presence of trainees who may handle the scope. A greater focus on upskilling trainees in the consent process for therapeutic endoscopy is required.

Examining the variation in consent in general surgery

INTRODUCTION

Consent is a fundamental aspect of surgery and expectations around the consent process have changed following the Montgomery vs Lanarkshire Health Board (2015) court ruling. This study aimed to identify trends in litigation pertaining to consent, explore variation in how consent is practised among general surgeons and identify potential causes of this variation.

METHODS

This mixed-methods study examined temporal variation in litigation rates relating to consent (between 2011 and 2020), using data obtained from National Health Service (NHS) Resolutions. Semi-structured clinician interviews were then conducted to gain qualitative data regarding how general surgeons take consent, their ideologies and their outlook on the recent legal changes. The quantitative component included a questionnaire survey aiming to explore these issues with a larger population to improve the generalisability of the findings.

RESULTS

NHS Resolutions litigation data showed a significant increase in litigation pertaining to consent following the 2015 health board ruling. The interviews demonstrated considerable variation in how surgeons approach consent. This was corroborated by the survey, which illustrated considerable variation in how consent is documented when different surgeons are presented with the same case vignette.

CONCLUSION

A clear increase in litigation relating to consent was seen in the post-Montgomery era, which may be due to legal precedent being established and increased awareness of these issues. Findings from this study demonstrate variability in the information patients receive. In some cases, consent practices did not adequately meet current regulations and therefore are susceptible to potential litigation. This study identifies areas for improvement in the practice of consent.

Consent practices in midwifery: A survey of UK midwives

OBJECTIVE

To explore midwives' knowledge and understanding of the law and practice of consent in the post-Montgomery world.

DESIGN

Cross-sectional online survey. Descriptive statistical analysis of midwives' survey responses.

SETTINGS

Social media: Instagram, Facebook and Twitter. Survey distribution was via the UCL Opinio survey platform.

PARTICIPANTS

A total of 402 midwives, surveyed over a four month period between 2nd March and 2nd July 2021.

MEASUREMENTS

Knowledge of legal consent, 'sureness' of meeting current legal requirements and competence to gain consent.

FINDINGS

91% of participants acknowledged correctly that consent must be voluntary. 91% reported that women must be informed of all the risks associated with their care, although 26% reported that women should be informed of some of the risks associated with their care. Most participants were 'sure' that their discussions of consent meet current legal requirements (91%). 21% rated their competence to gain consent as 'excellent', 71% rated themselves as 'very good', whilst 1% rated their competence as 'poor'. Deficiencies in fundamental knowledge of consent were noted in some participants rating themselves highest in 'sureness' of meeting legal requirements and competence to consent.

KEY CONCLUSIONS

Fundamental gaps in midwives' knowledge of legal consent were identified. Participants demonstrated uncertainty regarding the extent of risk disclosure and discussion of alternative care options. Participants generally rated themselves highly in their consenting practices, despite lacking in basic knowledge of legal consent, revealing a discrepancy between midwives' self-perceptions and their actual knowledge.

IMPLICATIONS FOR PRACTICE

The overconfidence displayed by some participants is concerning for clinical midwifery practice. Professional education and guidance for midwives on legal consent in keeping with Montgomery is urgently required to ensure that midwives are legally compliant in their consenting practices.

Patient choice: the shape of consent post-Montgomery

The law relating to consent and the process dentists need to go through to gain valid and informed consent to treat patients changed significantly following the landmark ruling of Montgomery v Lanarkshire Health Board. In this paper, we revisit the history of patient consent, give an update on the current legal situation in the UK, and produce a unique 'consent workflow' to aid in the process of gaining valid and informed consent to treat. The aim is to clarify the legal standing and provide a framework that dentists and other healthcare professionals can adapt to their current clinical practice while increasing the confidence of those involved in the consent process; both professionals and patients.

Montgomery's legal and practical impact: A systematic review at 6 years

RATIONALE, AIMS AND OBJECTIVES

Six years ago, the Supreme Court judgement in Montgomery v Lanarkshire changed medical law. It introduced a new patient-based standard of care for the communication of treatment risks and alternatives, rejecting the doctor-based standard that had long governed all aspects of medical negligence. This is the first systematic review to analyse the literature on Montgomery. Our aim is to appraise and synthesize the literature on Montgomery's impact on medicine and the law and to identify areas for further academic enquiry and implications for professional guidance and training.

METHODS

Searches were run in Medline, Embase, PsycINFO, Web of Science, Scopus, Westlaw UK, HeinOnline, and LexisNexis. Two reviewers screened papers. Extracted data was analysed and discussed by an interdisciplinary team. PRISMA guidelines were followed.

RESULTS

Of the 1134 papers identified, 100 met the inclusion criteria. These papers revealed significant disagreement on four core sets of issues, focusing on Montgomery's impact on: (1) legal and professional duties; (2) medical practice; (3) the patient experience; and (4) litigation. The first set addresses whether the case actually changed doctors' legal and professional duties, the relationship between GMC guidance and medical law, and the boundaries of Montgomery. The second explores whether the decision has incentivized defensive medicine, its resource implications, and doctors' knowledge of it. The third concerns whether and how the decision has promoted patient autonomy and involvement in their own care. The fourth focuses on whether the case has caused an increase in litigation.

CONCLUSIONS

Despite the abundance of legal and medical literature on Montgomery, many issues remain unresolved. Empirical research is required for many of the questions. Doctrinal analysis informed by medical knowledge is also required to assess whether Montgomery may have unrecognized ramifications-for example, whether it will require the disclosure of risks associated with diagnostic uncertainty, where doctors advise patients without performing procedures.

Junior doctor experiences and challenges in obtaining surgical informed consent: A qualitative systematic review & meta-ethnography

INTRODUCTION

Surgical informed consent (SIC) to procedures is necessary to ensure patient autonomy is adequately respected. It is also necessary to protect doctors, and their institutions, from claims of negligence. While SIC is often acquired by senior consultants, it also commonly falls to the junior doctors on a team to ensure SIC is adequately acquired and documented. A growing body of literature suggests that junior doctors are not sufficiently educated about the legal and practical issues concerned with obtaining medical consent. This may open up this cohort, and their hospitals, to medico-legal liability.

AIMS

to provide a systematic review of the qualitative literature on junior doctors' experiences and challenges in consenting surgical patients and to synthesize evidence on this issue in order to guide policy-makers in the medicolegal and medical education spheres.

METHODS

a systematic review of qualitative literature was performed. Analysis of the literature was guided by Noblit and Hare's seven-step approach to meta-ethnography, with the final synthesis presented as a thematic analysis of the literature.

CONCLUSION

This research concludes that a significant proportion of SIC is likely to be acquired by junior doctors, many of whom are Post-Graduate Year (PGY) 1-2 and who lack adequate training and education. This cohort face challenges in assessing capacity, in ensuring adequate disclosure related to surgical procedures, and in adequately documenting consent. This may impact the validity of any SIC they acquire. Medical educators and policy-makers should be aware of these issues when creating policies impacting SIC, and when designing surgical education programs for medical students and junior doctors alike.

A review of surgical and peri-operative factors to consider in emergency laparotomy care

Patients undergoing emergency laparotomy are a heterogeneous group with regard to comorbidity, pre-operative physiological state and surgical pathology. There are many factors to consider in the peri-operative period for these patients. Surgical duration should be as short as possible for adequate completion of the procedure. This is of particular importance in the elderly and comorbid population. To date, there are limited data addressing the role of damage control surgery in emergency general surgery. Dual consultant-led care in all stages of emergency laparotomy care is increasing, with increased presence out of hours and also for high-risk patients. The role of the stoma care team should be actively encouraged in all patients who may require a stoma. Due to the emergent and unpredictable nature of surgical emergencies, healthcare teams may need to employ novel strategies to ensure early input from the stoma care team. It is important for all members of the medical teams to ensure that patients have given consent for both anaesthesia and surgery before emergency laparotomy. Small studies suggest that patients and their families are not aware of the high risk of morbidity and mortality following emergency laparotomy before operative intervention. Elderly patients should have early involvement from geriatric specialists and careful attention paid to assessment of frailty due to its association with mortality and morbidity. Additionally, the use of enhanced recovery programmes in emergency general surgery has been shown to have some impact in reducing length of stay in emergency surgical patients. However, the emergent nature of this surgery has been shown to be a detrimental factor in full implementation of enhanced recovery programmes. The use of a national database to collect data on patients undergoing emergency laparotomy and their processes of care has led to reduced mortality and length of stay in the UK. However, internationally, fewer data are available to draw conclusions.