The Montgomery Judgement
Precedents established through common law for valid consent mean that people with capacity to make decisions about their care and treatment must be thoroughly advised about their treatment options, and the risks associated with each option. This will enable people to make informed decisions when giving or withholding consent to treatment. In other words, the principles of shared decision making must become the norm in the treatment and care of people.
This is specifically reflected in a key Supreme Court ruling in the case of Montgomery v Lanarkshire Health Board (2015). This marked a critical departure in law and set the following standard:
Health professionals now have to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments”. So, it’s not just the treatment for which consent is being sought but all reasonable alternatives.
Whether a risk is material is no longer determined according to the views of a “responsible body of medical men” but by the views of “a reasonable person in the patient’s position”.
Additionally, determination of material risk is considered to be subjective so professionals must assess each case on an individual, not generalised, basis.
The Mental Capacity Act 2005
The Act states that people who lack capacity to make decisions about their care and treatment should be involved in such decisions “so far as practicable”. Further guidance on the Mental Capacity Act can be found on the NHS England website.
General Medical Council guidance on decision making and consent
This guidance supports doctors in conversations with their patients, and helps them to be confident that they are sharing the information their patients need to make decisions that are right for them. Further details are available on the decision making and consent webpage.
National Institute for Health and Care Excellence guideline on shared decision making
- covers how to make shared decision making part of everyday care in all healthcare settings
- emphasises the importance of strategic leadership and patient preparation
- promotes ways for healthcare professionals and people using services to work together to make decisions about treatment and care
- includes best practice recommendations on training, communicating risks, benefits and consequences, using decision support resources
- shows how to embed shared decision making in organisational culture and practices.