Reflections on consent

Dr Mary McCaffrey considers ways to enhance patient consent and move towards greater shared decision-making

In Ireland issues around obtaining consent are a major cause of medical litigation, particularly in obstetrics and gynaecology.

At a recent meeting entitled ‘Insights on clinical risk, self-care, and consent’, Prof Stephen Kearns, Department of Orthopaedics, University of Galway, provided an overview of historical and current issues regarding consent in clinical practice in Ireland.

Prof Kearns outlined how guidelines and legal frameworks in relation to medical consent have evolved significantly over time. While previously, the courts placed emphasis on the reasonable physician making decisions in the patient’s best interest, subsequent Supreme Court judgments have shifted this responsibility, requiring clinicians to highlight all significant risks (Walsh v Family Planning). This would be very much in keeping with the UK Montgomery Rule, which arose following the 2015 case Montgomery v Lanarkshire Health Board. 

Since then, the courts have consistently suggested that clinicians must dedicate sufficient time to the consent process and ensure that the patient understands the proposed treatment, any material risks, and any reasonable alternative treatments. Such alternatives could include embarking on no treatment.

In his lecture, Prof Kearns outlined the difficulties and challenges with the practical application of these principles in current surgical practice. Our day-to-day clinical practice presents real and significant demands in terms of time and practicality.

Informed consent: How to achieve best practice

Prof Kearns described how he dictates a letter in the presence of the patient, giving them opportunity to correct, interject or clarify particularly in relation to complications. He will often email the letter to the patient for their secondary review, as we know only a small percentage of the initial consultation is recollected reliably. He also provides handouts for common procedures outlining the condition, the procedure, the alternative treatments, the complications, and the proposed rehabilitation. He still personally consents patients on the day of surgery when he is confirming the surgical plan, as some patients may have waited some time for their procedure and forgotten the specific details. He believes elective procedures, in particular, require a higher and more rigorous standard of consent compared to emergency situations.

Listening to this presentation led me to reflect on whether we achieve this level of practice on the issue of consent in each of our individual specialties.

Information for healthcare professionals

Both the Medical Council and the HSE provide consent guidelines which clinicians should familiarise themselves with.

When obtaining consent from patients, we must ensure that they can understand the conversation. People with hearing difficulties may benefit from a sign language translator, which is a legal entitlement in Ireland. Those with visual impairment may benefit from Braille reading material or audio aids. People for whom English is not their first language should be offered a formal translator rather than relying on family members or friends.

Importantly, the physical environment for such consultations should be conducive to shared, voluntary decision-making.

Despite guidelines recommending advance consent, many patients only consent on the day of surgery by relatively junior doctors on the ward, according to Prof Kearns.

What can other specialties learn from this model of consent?

Rather than decide that best practice is not achievable, I would like us to reflect on what changes we could make to our clinical practice to incorporate informed consent in a more meaningful manner.

In general, most surgical specialties work in an environment, even for emergency surgery, where they have time to communicate and provide information to their patients prior to interventions.

For those of us who work in a specialty such as obstetrics or emergency medicine, this methodology may seem unachievable. Reflecting on the legal expectations of the Montgomery Rule, it may seem impossible that we could achieve that standard in many acute obstetric emergencies.

A decision to perform an instrumental delivery or emergency Caesarean section is often made very quickly with only minutes provided for consent. Increasingly, after deliveries, parents state that they feel traumatised and uninformed about the situation that evolved. This can then lead to anxiety, postnatal depression, or even post-traumatic stress disorder. Sadly, these situations can be an impetus for complaints to HSE or Medical Council and litigation.

What research tells us?

Jacques et al (2024) looked at consent of pregnant women during childbirth in France. They found that 44 per cent reported no consent for oxytocin administration, 60.2 per cent reported no consent for episiotomy, and 36.6 per cent reported no consent for an emergency Caesarean section.

A number of publications by Jacqueline Nicholls’ group have looked at consent in pregnancy in a region of the UK. One study described 16 antenatal consultations in a large teaching hospital. They concluded that an emphasis on clinical risk dominated the narrative. 

A further paper by this group ‘Patient-centred consent in women’s health: Does it really work in antenatal and intrapartum care?’ concluded that the current legal guidance on patient consent sets a high bar for healthcare professionals that is mismatched with what can be achieved in practice. They suggested that a delicate balance must be struck between the trust of a patient in their professional and the simple focus of improving information provision.

Ayling et al (2019) looked at information-giving while in labour versus late pregnancy. They concluded that women receiving information at 36 weeks and in labour had a higher comprehension and retention of information compared to women being consulted in labour only.

In ‘Reviewing past and present consent practices in unplanned obstetric interventions: An eye towards the future’, Wilbourne et al (2024) explored whether or not women have the capacity to consent during labour. This paper flagged the fact that two-thirds of women undergoing instrumental deliveries could not recollect the risks having been explained to them. Likewise, women undergoing emergency Caesarean sections were significantly less likely to recall risks explained during the consent process compared to women who had planned Caesarean sections. This would suggest that women who had an elective procedure had more time to ask questions and consider the risks. It reinforces the point that providing information in labour when a woman is exhausted or may be sedated is not ideal.

Changing practice in obstetrics on consent

Can we change our practice, and if so how? Women first attend the antenatal services from 12 weeks gestation, which provides a window of opportunity of at least 25 weeks to educate and explore their ability to understand the complexities of care in pregnancy and labour.

Many couples expect pregnancy and the delivery of their babies to be uncomplicated, with much of their information sourced from social media. Yet, pregnancy and labour can be very high-risk situations for many women.

As clinicians, we need to focus on improving how we provide information and education to expectant parents. It may involve maternity unit specific statistics setting out rates of Caesarean sections, inductions and complications. This will assist in setting realistic expectations and support informed decision-making.

While some healthcare providers may consider this information alarming, it could assist decision-making and create a backdrop for patient expectations.

Conclusions and key messages

• The Montgomery Rule (UK) has set the bar very high for clinicians when providing consent to patients.

• In each specialty, clinicians should reflect on what changes in practice would allow us to provide a higher quality of informed consent.

• All clinicians should familiarise themselves with HSE policies, Medical Council guidelines, and individual specialty/faculty guidelines.

• Having reflected on current practice in obstetrics, it is evident that changes in practice are necessary in this specialty. How this is resourced must be explored, but change is achievable.

• Moving away from physician-directed care to a model of shared decision-making with patients should be our goal when obtaining consent from patients.

Continued learning

Understanding the challenges that can arise in this area can protect healthcare professionals from a complaint or claim relating to consent.

Medical Protection’s Online Learning Hub hosts a wide range of interactive courses, webinars and videos to help doctors reduce their risk, and has some excellent modules on consent.

I would encourage all members to make use of it. It is a benefit of membership, counts towards CPD requirements and the resources can be accessed any time.

To find out more, log in, or activate your account, visit: www.medicalprotection.org/professionaldevelopment

My thanks to Prof Kearns and his surgical colleagues in Galway for prompting my reflection on consent following his thought-provoking lecture.

This article was co-authored by Prof Stephen Kearns.