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Surgeons should 'let patients choose' to avoid litigation, new guidance states

Published 27/10/2016

Surgeons should take a less 'paternalistic' approach, the RCS has advised
Surgeons should take a less 'paternalistic' approach, the RCS has advised

Surgeons should stop being "paternalistic" towards patients and and instead simply give them their options and "let them choose", according to new guidance for medics.

The Royal College of Surgeons (RCS) has warned that if NHS trusts do not make changes to the processes they use to gain consent before surgery, they risk facing a dramatic increase in the number of litigation payouts.

In the wake of a landmark-ruling at the Supreme Court last year, which changed the rules of gaining patient consent, it has published new instructions for its 20,000 members.

Leslie Hamilton, a Royal College of Surgeons (RCS) council member, said the changes introduced by the case of Nadine Montgomery, who won a £5.25m payout in 2015, were a "real wake-up call".

He said: "It is really about focusing on the individual patient," adding: "We now need to sit down and tell the patient all the other options and let the patient choose and not tell them."

Ms Montgomery won the money from Lanarkshire Health Board in Scotland after accusing medics of failing to properly advise her of the risks of being a "diabetic of small stature" before she gave birth to son Samuel.

He was born with serious disabilities as a result of complications during delivery in 1999 and she argued if she had been advised of the risk of shoulder dystocia - when a baby's shoulders are too wide to pass through the pelvis - she would have had a caesarean.

NHS practice has traditionally been to leave it to doctors to decide what risks to communicate to patients - in what the RCS called a more "paternalistic approach".

This is despite 2008 guidance from the General Medical Council stating that doctors should not make assumptions about the information patients might need or want.

But the judges on the Montgomery case ruled that doctors should take reasonable steps to ensure patients are aware of relevant risks and also of alternative treatments.

Mr Hamilton said: "We feel the NHS and doctors in general haven't really woken up to this yet, which is why we are bringing out this guidance now.

"The NHS will be bringing out guidance, the GMC will be bringing out guidance - we thought we couldn't wait for that, we want the surgeons to be aware of this now so that we can change.

"Because if we don't there is going to be more litigation.

"But also for an individual surgeon it is devastating to get a clinical negligence case against them. That can really affect people's practice and that is a big issue."

According to the NHS Litigation Authority, which handles medical negligence claims on behalf of hospitals, NHS trusts in England paid out more than £1.4bn during 2015 - 2016.

The RCS guidance states written information on diagnosis and available treatments should be provided to patients, and they should be given enough time to make an informed decision, wherever possible, and when it is not adverse to their health.

Those discussing treatments and risks should be suitably trained and qualified in the treatment area and have sufficient knowledge of associated risks and complications.

Surgeons must also keep a "written decision making record that contains a contemporaneous documentation of the key points of the consent discussion".

Cancer surgeon Shafi Ahmed, from the Royal London Hospital, said it had been trialling longer appointment times at his clinic, and had been working with a reduced number of patients to allow this.

Patients are given a slot of 30 to 45 minutes to allow them to be spoken to and properly informed, he said it has been about "working smart", and has involved managing follow up appointments through a "virtual clinic".

The RCS said they are also concerned many NHS trusts are not allowing enough time for consent to be gained sufficiently during consultations.

Mr Hamilton said it is not hard to see how gaining consent has become a "tickbox exercise" done quickly in a system under huge pressure, but stressed it is important to give patients enough time.

He added: "As doctors we all went into medicine because we like helping patients and we like talking to patients and having that relationship.

"I think the pressures in the NHS over the years have sort of pushed that a little bit to one side and this gives us a chance to reclaim that again."

Press Association

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