Consent failures spur claims hike

On 16 April,2020 | In News
By Olive Carterton

Negligence claims due to failure to inform patients before they consent to procedures have shot up since a landmark legal ruling in 2015.

A new study by Queen Mary University of London found that while the rate of increase of other claims has remained steady, cases relating to consent have risen fourfold in four years.

And where failure to inform was added as a contributory claim, the rise was nearly ten-fold.

The change follows the landmark Supreme Court ‘Mont­gomery’ judgment. This altered the legal test for determining what is sufficient disclosure before consent is given to treatment, by moving away from asking what a reasonable doctor would warn about and asking instead what a reasonable patient would expect to know.

Study lead and professor of cardiology David Wald told Indepen­dent Practitioner Today: ‘Although the data we used was purely from the NHS, the problem will affect all healthcare providers. 

‘It’s highly likely that the rise in claims linked to failure to inform will also have an impact on private practice – in fact, it probably has already.’

He said a Supreme Court case in 2015 was reasonable in overturning a judgment in favour of the claimant, Nadine Montgomery, but research showed the broader implications of the ruling had serious, unintended consequences. 

‘By blurring the requirements for what doctors should tell patients and changing how negligence is determined, it has made it harder for hospitals to defend allegations of failing to properly inform patients before consent. The Supreme Court believed their ruling would reduce litigation but the opposite has happened.’

The team obtained the data through a Freedom of Information request on the claims settled by the NHS between 2005 and 2019. Of 70,000 cases, just over 2,300 were linked to failure to inform, with a total value of nearly £400m. 

Researchers found that between 2011 and 2015, costs for settling these types of cases rose from £25m per year to £28m per year. From 2015 to 2019, costs rose to £62m per year. The rise was purely due to the increase in numbers of claims, as the cost per claim remained steady.

Prof Wald said: ‘Claims involving failure to inform are normally invisible in the overall numbers of negligence claims, but the rise we’ve identified is striking and shows no sign of stopping. 

‘The data support concerns that lawyers are adding consent-related claims to other allegations, which, on their own, may not be successful in court. The Montgomery ruling now makes these cases much easier to win and the NHS is paying the bill.’ 

He believes there is an urgent need for hospitals to improve communication before consent – and for lawmakers to consider revising the legal framework to provide a fairer and less costly system.

The study found lawyers’ fees accounted for about 40% (£155m) of costs paid in settled claims due to failure to inform.

Prof Wald has developed multilingual animations for medical and surgical procedures, which are made available to patients to give them time to consider the benefits, risks and alternatives and prepare any questions prior to treatment in order to support the discussion before consent (see www.explainmyprocedure.com).

Solicitor Paul Sankey warned in Independent Practitioner Today in March 2017 (see above) that ‘surprising numbers’ of independent practitioners were putting themselves at risk because they had not caught up with new duties for obtaining consent to treatment. Check out his advice in that issue.