Reasonable Persons, Autonomous Persons, and Lady Hale: Determining a Standard for Risk Disclosure

Examining the variation in consent in general surgery

INTRODUCTION

Consent is a fundamental aspect of surgery and expectations around the consent process have changed following the Montgomery vs Lanarkshire Health Board (2015) court ruling. This study aimed to identify trends in litigation pertaining to consent, explore variation in how consent is practised among general surgeons and identify potential causes of this variation.

METHODS

This mixed-methods study examined temporal variation in litigation rates relating to consent (between 2011 and 2020), using data obtained from National Health Service (NHS) Resolutions. Semi-structured clinician interviews were then conducted to gain qualitative data regarding how general surgeons take consent, their ideologies and their outlook on the recent legal changes. The quantitative component included a questionnaire survey aiming to explore these issues with a larger population to improve the generalisability of the findings.

RESULTS

NHS Resolutions litigation data showed a significant increase in litigation pertaining to consent following the 2015 health board ruling. The interviews demonstrated considerable variation in how surgeons approach consent. This was corroborated by the survey, which illustrated considerable variation in how consent is documented when different surgeons are presented with the same case vignette.

CONCLUSION

A clear increase in litigation relating to consent was seen in the post-Montgomery era, which may be due to legal precedent being established and increased awareness of these issues. Findings from this study demonstrate variability in the information patients receive. In some cases, consent practices did not adequately meet current regulations and therefore are susceptible to potential litigation. This study identifies areas for improvement in the practice of consent.

Montgomery's legal and practical impact: A systematic review at 6 years

RATIONALE, AIMS AND OBJECTIVES

Six years ago, the Supreme Court judgement in Montgomery v Lanarkshire changed medical law. It introduced a new patient-based standard of care for the communication of treatment risks and alternatives, rejecting the doctor-based standard that had long governed all aspects of medical negligence. This is the first systematic review to analyse the literature on Montgomery. Our aim is to appraise and synthesize the literature on Montgomery's impact on medicine and the law and to identify areas for further academic enquiry and implications for professional guidance and training.

METHODS

Searches were run in Medline, Embase, PsycINFO, Web of Science, Scopus, Westlaw UK, HeinOnline, and LexisNexis. Two reviewers screened papers. Extracted data was analysed and discussed by an interdisciplinary team. PRISMA guidelines were followed.

RESULTS

Of the 1134 papers identified, 100 met the inclusion criteria. These papers revealed significant disagreement on four core sets of issues, focusing on Montgomery's impact on: (1) legal and professional duties; (2) medical practice; (3) the patient experience; and (4) litigation. The first set addresses whether the case actually changed doctors' legal and professional duties, the relationship between GMC guidance and medical law, and the boundaries of Montgomery. The second explores whether the decision has incentivized defensive medicine, its resource implications, and doctors' knowledge of it. The third concerns whether and how the decision has promoted patient autonomy and involvement in their own care. The fourth focuses on whether the case has caused an increase in litigation.

CONCLUSIONS

Despite the abundance of legal and medical literature on Montgomery, many issues remain unresolved. Empirical research is required for many of the questions. Doctrinal analysis informed by medical knowledge is also required to assess whether Montgomery may have unrecognized ramifications-for example, whether it will require the disclosure of risks associated with diagnostic uncertainty, where doctors advise patients without performing procedures.

When Artificial Intelligence Models Surpass Physician Performance: Medical Malpractice Liability in an Era of Advanced Artificial Intelligence

It seems inevitable that diagnostic and recommender artificial intelligence models will ultimately reach a point when they outperform human clinicians. Just as antibiotics displaced a host of medicinals for treating infections, the superior performance of such models will force their adoption. This article contemplates certain ethical and legal implications bearing on that adoption, especially as they involve a clinician's exposure to allegations of malpractice. The article discusses four relevant considerations: (1) the imperative of using explainable artificial intelligence models in clinical care, (2) specific strategies for diminishing liability when a clinician agrees or disagrees with a model's findings or recommendations but the patient nevertheless experiences a poor outcome, (3) relieving liability through legislation or regulation, and (4) comprehending such models as "persons" and therefore as potential defendants in legal proceedings. We conclude with observations on clinician-vendor relationships and argue that, although advanced artificial intelligence models have not yet arrived, clinicians must begin considering their implications now.