Consent in surgery: Is there a Montgomery effect?

In the aftermath of Montgomery, hospitals across the UK have been bombarded by offers to ‘update’ their clinicians’ understanding of the ‘new consent law’. Even surgeons have now heard the story of Mrs Montgomery’s plight, and the Supreme Court’s reaction to the events that unfolded during the birth of her son.

In truth, the reasonable surgeon has seen little change to the advice that he or she is offered when considering what should be disclosed when seeking a patient’s consent to surgery. From the non-lawyer’s perspective, the Lanarkshire case makes no alterations to the advice set down within the GMC’s guidance in 2008 ¹ ; itself, a synthesis grounded in another obstetric case from the last century. ²

It is important to understand that there is a disconnection between what the GMC asserts that doctors should know and the current surgical generation’s grasp of consent law. This is easily illustrated; it is commonly believed by clinicians that the purpose of discussing with the patient or their relatives a proposed DNACPR order is to seek consent for non-resuscitation. Equally, that when preparing to perform emergency life-saving surgery on an adult very recently incapacitated by their disease, surgeons are ‘providing consent for the patient’ by the use of the relevant form, rather than relying on necessity. Or that it is unnecessary to obtain consent for surgery on an incompetent child from a person who has the relevant parental responsibility, since simply asking the neighbour to sign will suffice.

This disparity between what is and what should be known dates from a long-term failure of medical education to teach clinical law, only recently being addressed. Nevertheless, the existence of this lacuna in elementary clinical knowledge (and language) is a significant difficulty when bringing surgeons up to date with changes in clinical law.

Regardless of the historical defect in medical education, much has changed in both the health service and the law, whilst the pace of surgeons’ evolution is slower. There is ample authority to indicate that disclosure must reflect the alternatives to the surgeon’s favoured treatment, and the benefits and risks of those alternatives should be quantified, where possible. In general terms, this has been or is being adopted in the surgical psyche. On the other hand, the persistent belief in a numeric threshold for disclosure, despite Montgomery yet again repeating previous judicial denouncements, ³ has not been shaken off by surgeons, who quite reasonably remind anyone listening that if rare outcomes are to be disclosed, ‘we’ll be here all day’. A further concern is where (and whether) to draw a line when disclosing the risk of intra-operative complications.

Take, as an example, a man with an oesophageal cancer which is stopping him swallow. There are at least four viable alternatives to his urgent treatment, all of which quite rightly must be laid out before him so he can make an informed choice. One of these alternatives will be dilatation of the malignant narrowed segment of the oesophagus, and stent insertion. Foreseeably, the dilatation may tear the oesophagus, and he might get an infection in the mediastinum. The reasonable patient would need to know that. The infection might manifest as a lung abscess; the abscess may burst into the adjacent bronchus allowing pus to spill into the opposite lung, causing aspiration pneumonia. This might lead to the need for tracheostomy. (Even at this stage, the patient may feel reluctant to contemplate further disclosure.)

In the meantime during his general deterioration, systemic sepsis, acute kidney and liver injury, and foreseeably a stroke (due to his concomitant cerebrovascular disease) might supervene. And venous thrombo-embolism will always be a threat.

One may empathise with the oesophageal surgeon, since all or any of these calamities might weigh heavily in the decision making of the patient in front of him; should all of this be disclosed?

Whilst the lawyer must be aware of the potential causative link between substandard practice and a plausible if distant harm, ⁴ the surgeon does not benefit from the same hindsight.

Disclosure is required because the surgeon cannot possibly know what private matters the patient will need to take account of when deciding whether to agree to a particular procedure. It is for this reason that the surgeon must do his or her best to put the patient in the same position of knowledge of the clinical dilemma as they are, so that an informed choice can be made. That much the GMC has made clear, but when considering the branches and twigs of complications that arborise from only one of several alternatives, it can be seen that there is a serious practical clinical problem in knowing where to draw the line, at a point where foreseeability of risks becomes too theoretical to guide practicable further disclosure.

When explaining disclosure to surgeons, the scenario above, in its infinite disguises, is invariably raised by the perplexed and despairing audience.

Once the limit of the foreseeable complications that need to be disclosed is settled, a solution to the volume of information that needs to be communicated may be achieved by a combination of written and oral disclosure. At the first meeting, the patient is given a written list of alternatives and the potential outcomes which would influence the reasonable citizen in coming to a decision. The oral disclosure can, on another day, subsequently include an offer to discuss matters arising from the patient’s reflection on the list.

Nowhere is this more relevant than in high-volume specialities, such a cataract surgery. Although rare, the outcome of some treatment alternatives can be devastating. But since the conventional surgery is usually finished in minutes, with no general anaesthesia, Trusts (and private practitioners) are tempted to pack patients (measured in dozens) into a lucrative half-day session. How could a surgeon possibly achieve the necessary disclosure, discussion, decision making and recording without abandoning the conveyor-belt approach to the ‘one stop shop’ for cataracts? It will cost money.

Having more time with the patients, probably two outpatient sessions, would undoubtedly make a post-2008 consent process feasible.

Alas, the reverse is occurring. From a variety of sources, there is ample evidence that many hospitals now have little enough office and clinical space; certainly, patients for day surgery are often ‘camped’ on rows of chairs in a discharge lounge whilst discussing their forthcoming surgery and anaesthesia. Presumably, also sharing widely their history, examination and having the correct side marked upon them. Not a dignified or composed environment. Quite apart from being the antithesis of a private setting, this is no place for a calm discussion of alternatives and benefits; let alone for the receipt of a potentially distressing reminder of the risks of complications that may end or change a life.

Add to this the ubiquitous uncertainty, shared early with the patient, that on this particular day, you will get your operation at all. Many (perhaps most) hospitals have more patients than beds at 0830 each morning, so your ‘preoperative’ discussion with your anaesthetist is by no means a guarantee that the surgery will occur. It is no more than an aspiration, depending on whether more will leave the hospital than have entered. In these circumstances, one might question whether the patient who signs their consent form on the morning of surgery will have capacity to do so.

Preoperative assessments days prior to the surgery certainly relieve these pressures and offer a calm and unhurried atmosphere for surgeons, anaesthetists and patients to discuss the forthcoming procedure. It is notable that in arranging such clinics, Trusts are beginning to staff them with specialist nurses; for instance, in cardiac catheter labs. It appears that for such high-volume interventions, it is impractical to arrange for the patient to be seen by the person who will perform the operation.

The trend to ‘centralise’ complex services also pose difficulties for patients who will perforce live many miles from the hospital. Hospital parking will be expensive and scarce; the travel (for many) by public transport onerous, particularly for the elderly. None of this encourages patients to come for pre-assessment, where amongst other things a consent transaction can be achieved which they had not appreciated (in their ignorance of Montgomery) was mandatory. Furthermore, by the time that the operation date (on which the pre-assessment date was predicated) has been cancelled a few times due to lack of beds or operative time, the disclosure has faded in the patient’s memory, and the process will need to be repeated as they sit in that discharge lounge, hoping.

Admission to hospital to await your urgent surgery, perhaps treatment for a fractured hip has its own pitfalls. Elective surgery provides the cornerstone of a hospital’s income and in some hospitals has priority over urgent or emergency patients, insofar as there are time sensitive ‘targets’ that must be met for elective admissions. As a consequence, if the modest space reserved for non-elective surgery is overwhelmed on the day when your hip surgery is due (having been admitted two days ago after a fall), the next option may be to put you into an elective list where a space has appeared, since no post-operative bed is available for the intended beneficiary. Whilst this is a prudent use of scarce resources, it poses a hazard to consent, amongst other things. The surgeon will have started his or her list before the final list order is known and will be currently oblivious to your good fortune in being ‘slotted in’. However, you, your anaesthetist and surgeon will all have rather rapidly to adjust to the unexpected, if welcome news that the disclosure for your urgent anaesthetic and surgery is going to be squeezed into a few minutes between the ‘case [person] coming off the table’, and the commencement of your slot on the list.

Patients facing emergency surgery are presented with other difficulties. Lying on a trolley with severe pain in your abdomen; fearful of grave diagnoses, and the surgery that will shortly be absolutely necessary, you may not welcome the surgeon who visits you with the alternatives as he sees them and their various risks and benefits. Surgeons find it hard to ‘slim down’ the GMC advice to the kernel of information that will satisfy the rules of disclosure. Plainly, this is an exercise in clinical judgement, no different from choosing the relevant investigations and antibiotics that the patient requires before surgery. But the recent spotlight on consent has led surgeons to believe that there is a ‘right’ answer, rather than yet appreciating that it is what the reasonable patient in the circumstances will need to know. This is not a clinical situation which those queueing up to teach the doctors consent are keen to address.

The future of hospital notes is electronic and will doubtless have benefits. Consent forms may well become more interactive, presumably with pull-down menus for alternative treatments, together with their derivative risks and complications. At the present stage of this evolutionary era, it is apparent that doctors are less inclined to look at electronic notes than they were at the paper predecessors. The electronic equivalent is often presented as a series of separate files; one for each clinic letter, each of which has to be opened and closed, etc. Not as quick as leafing through a dozen sheets of paper. We will need to wait for systems that are as fast to use as paper before we know whether the disinclination to have a ‘quick’ glance back through the electronic notes persists. Certainly, the same is true of writing. Typed operation notes have become briefer, details whose absence 15 years ago would have equated to substandard note-keeping now obvious by their absence. This new ‘standard’ may reflect the more frenetic pace, surgeons perhaps having too little time to type, once they have finally found a computer which is vacant, works, and will accept their log in. It seems possible that noting detailed disclosure for consent will have to be achieved in a different way if a standard acceptable to the GMC is to be achieved.

It is fully conceded that in many hospitals, surgeons obtain the valid consent of patients in a convivial environment. But this ideal is becoming harder to achieve, as the NHS strives to become ‘leaner’.

Conclusion

Surgeons should view Montgomery as a reminder to adhere to the GMC’s guidance on disclosure when seeking consent; using their clinical judgement to ponder what that disclosure should entail for the patient in front of them. Those who manage surgical services must recognise that surgeons need to be provided with sufficient time and resources to allow them to comply with their regulator’s instructions.