Patient consent and patient preferences

  • Published: November 03, 2017
  • Author: Paul Sankey, Partner, Enable Law

Do changes to the law governing patient consent create more strain on a health service already in crisis, or could they produce some unexpected benefits? And are medical professionals as good as they think at understanding what their patients want? It may actually be that the changes help ensure that patients get a better service and the NHS saves money.

Patient consent: how has the law changed?

In March 2015, the Supreme Court gave judgment in Montgomery v Lanarkshire Health Board[1]. Previously a doctor was only legally required to give the sort of advice that a responsible body of doctors in the same discipline would have given rather than what a patient would have wanted to know. If responsible colleagues would have given similar advice, the duty was met. In the case of Montgomery, a woman in labour was not told of the increased risk of serious injury to her and her child or invited to consider a Caesarean section, which would have avoided that risk. The Supreme Court re-wrote the law after this case. The test became what a patient like this particular patient would want to know. In effect, a patient-centred approach displaced a doctor-centred duty.

The concern for doctors is how they can work out what a patient like this would want to know.

To make the right choices, patients need the right information. Assessing what risks are involved in a course of treatment is a matter for medical experts. But assessing the impact of those risks and deciding what risks to run is a matter for the patient. In making their decision, patients need the right information. The new duty requires doctors to spend enough time in discussion with their patients to understand their concerns and provide the information they need to make a decision. This is where a tension often arises within current NHS practice.

A new burden on the health service?

Not all are concerned. Some doctors think that the law now reflects how they have practised for years. Certainly, the Supreme Court in Montgomery thought it was moving the law into line with standards expected by the GMC. However, others see tensions between NHS practice and the new duty. Are consultation times long enough for the sort of doctor-patient dialogue the Courts expect? Are patients advised early enough (with sufficient time to reflect) before committing themselves to surgery? In one legal case, the Court was critical of the consent process where a patient was not told of a change of surgeon until she was on her way to theatre. The patient's consent was held to be inadequate[2].

Patient autonomy: The patient's right to decide

The key factor behind the Supreme Court's decision was the importance of individual autonomy: the patient's right to decide.

The Supreme Court recognised that, whereas patients were once regarded as passive recipients of care, they are now viewed as people holding rights. Patient autonomy has displaced medical paternalism. Passive recipients of care might simply place themselves in the hands of their doctors and follow advice given. Patients exercising rights would be expected to weigh the risks of different treatment options, choose the risks they are willing to run and accept responsibility for that choice.

Misunderstanding of patient choices

Aside from respecting patient autonomy, there is another reason – although not one given by the Court – to take a patient-centred approach to advice. The medical profession may not be quite as good as it thinks in understanding what patients want. While doctors aspire to excellence in diagnosing disease, there is evidence that they are not good at diagnosing patient preferences.

This is the conclusion of a report by the Kings Fund[3] in 2012. From holding seminars for medical professionals on patient consent, it surprises me that so few doctors are aware of the report and its conclusions. The evidence is both striking and alarming.

What is the right treatment for a patient? Many doctors assume that if they get the diagnosis right then the treatment follows. 

The assumption is wrong. In fact, equally important is what the patient wants to achieve. The second wrong assumption is that understanding a patient's preferences is straightforward. In fact, it is complex.

Identifying patient preferences: the evidence

Evidence suggests that, while doctors may think they are good at understanding patient preferences, they are often wrong. The report says, "They are not just misguided in their self-assessment, they are dangerously wrong. Indeed, there are breathtaking gaps between what patients want and what doctors think they want" [4].

'Breathtaking' is a strong word. But it is right. For instance, to what extent do patients with breast cancer considering chemotherapy prioritise life expectancy above all else? In one study, doctors put the figure at 96% of patients. Reports from patients suggest the figure is 59%. In another study, doctors believed that 71% of patients rated preserving the breast as their top priority. In fact, the figure is 7%. That is a staggering statistic. One breast surgeon commented, "We were always taught in medical school that preserving the breast was the priority". Apparently, what he was taught was simply not correct from a patient's perspective.

Another study showed that, when patients with benign prostate disease were properly informed of the risks of sexual dysfunction against the improved urinary symptoms, 40% fewer chose surgery. Surgeons had overestimated patient preferences for symptom relief in the face of an unwanted consequence.

In a study of back pain for herniated discs, 30% fewer chose surgery when fully informed. The deciding factor was that most patients get better without surgery. Once patients understood this, they were less inclined to have surgery.

These misunderstandings of patient preferences can lead to litigation. Spinal surgery is an area that has featured among recent cases about consent. In one case, a patient was awarded damages where a surgeon had given her incorrect information about the risks of spinal surgery[5]. The Court's criticisms included a failure to advise her that her symptoms would probably resolve in time – exactly the issue identified in the study.

However, there are also cases where, with more information, patients would be more inclined to elect for surgery. A study of patients with spinal stenosis found that 30% more would choose surgery when fully informed.

Saving money for the NHS

So, a patient-centred duty is more likely to respect patient preferences. There is also another benefit – the potential for massive savings to the NHS. There is evidence that patients choose fewer treatments when better informed. An international Cochrane Review that included 11 trials involving major elective surgery found that demand declined by 20% when patients were better informed.

As the report points out, healthcare may be the only industry giving customers what they really want would save money.

So what may at first sight create strains for the NHS – in the form of more time for consultations with patients – could relieve those strains by shortening waiting lists for surgery.


The law relating to patient consent changed significantly with the decision in Montgomery v Lanarkshire Health Board in 2015. That change has caused concern in the medical profession. However, there are real benefits in respecting patient autonomy, as identified by the Supreme Court. In addition, there are also some other significant benefits, both for patients and the health service. One is that patients are more likely to get the treatment they would prefer. Another is that they may actually have less surgery and save the NHS money.


[1] Montgomery v Lanarkshire [2015) UKSC 11. The law, as stated by the Supreme Court is, "An adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and her consent had to be obtained before treatment interfering with her bodily integrity was undertaken. The doctor was under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment and any reasonable alternative or variant treatments. The test of materiality was whether, in the circumstances, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient would be likely to attach significance to it." 
[2] Jones v Royal Devon & Exeter NHS Foundation Trust. For comment, see For comment, see 'Consent to Medical Treatment: Must the Surgeon Advise who will Operate? Can the Patient Choose?'
[3] Al Mulley, Chris Trimble, Glyn Elwyn, 'Patient Preferences Matter. Stop the Silent Misdiagnosis', The Kings Fund 2012 
[4] Ibid, p5
[5] Thefaut v Johnson [2017] EWHC 497 (QB). For comment, see 'The Optimistic Surgeon and the Unhappy Patient: Lessons from the Courtroom'






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