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Judges rule that patients must have all options explained to them

Judges rule that patients must have all options explained to them.

Radical new guidance for medics represents the end of a previously ‘paternalistic’ approach to inform and consent between surgeon and patient. The Royal College of Surgeons (RCS) has warned its 20,000 members that processes currently used to gain a patient's consent ahead of surgery must change or litigation will increase. Surgeons should stop being “paternalistic” and instead simply lay out all the options to “let patients choose” whether to undergo surgery.

The new guidance follows a judgement last year from the supreme court in the case of Nadine Montgomery from Lanarkshire, whose son Sam has cerebral palsy.

Ms Montgomery was awarded £5.25m compensation because doctors did not explain the very small risk associated with a normal birth in her case – she is a type 1 diabetic and diabetic mothers can give birth to larger babies. One of the risks in such cases is shoulder dystocia, where the baby gets stuck during labour. Sadly this occurred during Sam's birth in 1999 - he was consequently deprived of oxygen and suffered brain damage. Her obstetrician had not discussed the risk posed by his mother's diabetes because it was statistically small and she was not offered a caesarean section.

NHS practice has traditionally been to leave it to doctors to decide what risks to communicate to patients but the judges agreed that doctors must tell patients not only what they think they need to know but also the risks that might matter to the patient. One of the judges also said that doctors must not discuss one particular treatment over other possible options.

With the NHS under ever-increasing pressure, the RCS has become concerned that many hospital trusts are not allowing enough time for the consent process to be carried out properly during consultations and that gaining a patient's consent has become a paper tick-box exercise, hurriedly done before a patient undergoes their procedure. The new guidance means that the current consent form will have to be replaced by “a decision-making record” on which the details of the discussion between the clinician and their patient are written down. Additionally, it will probably have to be the consultant rather than one of the junior doctors who talks through the options and finally obtains the patient’s agreement to any procedure.

The Montgomery case will mean that in future, doctors will be required to explain all the options to their patients, including the ones they themselves would not recommend, and let them choose for themselves.

For further information and advice about pursuing a claim for clinical negligence please contact Shaun Burke on 01325 466461 or email

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