Shared decision making to comply with national legislation and policy

Key legislation

Promoting the involvement of people in their own health and care is a key component of CCGs’ and NHS England’s statutory duties.

Section 14U of the National Health Service Act 2006 (as amended by the Health and Social Care Act 2012) specifically states that CCGs must promote involvement of each individual, their carer and (should there be any) their representatives in decisions relating to the prevention or diagnosis of illness, or their care or treatment.

Section 14V states that CCGs must, in the exercise of their functions, act with a view to enabling individuals to make choices with respect to aspects of health services provided to them. NHS England is under equivalent legal duties in relation to individual involvement and choice under sections 13H and 13I respectively.

NHS England and CCGs are required to give effect to individuals’ rights to make choices about who provides their care and treatment.

Precedents established through common law for valid consent mean that people with capacity to make decisions about their care and treatment must be properly advised about their treatment options, and the risks associated with each option, so they can make informed decisions when giving or withholding consent to treatment. In other words, the principles of shared decision making must become the norm.

This is specifically reflected in a key Supreme Court ruling in the case of Montgomery v Lanarkshire Health Board  (2015), when an earlier ruling was overturned.  This marked a critical departure in law and a new standard has been set.

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.

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 generalized, basis.

More detail on legal requirements for individual involvement in health can be found in the Involvement Hub on the NHS England website.

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.