The union for health and care managers

Home  >  News & Campaigns  >  Features  >  Legal Eye: Navigating the rules on patient consent
Thursday 15 December 2016

Navigating the rules on patient consent

By Linda Millband

New rules on patient consent mean doctors have to be more upfront with patients about risks. Here’s what managers need to know.

Signing Form

"Informed consent" must be given before a medical professional can perform any treatment or procedure on a patient. For consent to be valid, it must be both voluntary and informed – the patient’s decision cannot be influenced by anyone else and they must have full details of the risks of treatment and any possible alternatives. A doctor must also determine whether the patient has the capacity to make this decision by themselves.

The process wasn’t always like this. Previously, under the Bolam test, which relied on doctor’s “duty of care” towards the patient, there could only be a finding of negligence if there was no respectable body of medical opinion which supported the doctor’s actions.

In the case of Chester v Afshar, the courts prioritised the need for a doctor to inform the patient of risks arising from surgical procedure, superseding the process of only having to show that their conduct would have caused the patient harm. Mrs Chester’s disc protrusion surgery carried a 1-2% risk that the procedure could worsen her condition. The court ruled that, since she had not been informed of this in advance, the doctor had breached the duty to obtain valid consent for the procedure.

Material risks

The Supreme Court’s 2015 ruling on Montgomery vs Lanarkshire Health Board made further changes necessary. Doctors must now ensure that patients are aware of any “material risks” involved in a proposed treatment, and of reasonable alternatives. Material risks occur when a “reasonable person” in the patient’s position would find the risks to be important in their decision – in this case, the risk of injury to either the mother or baby of a vaginal delivery birth. 

Nadine Montgomery experienced complications during delivery which meant her son was born with cerebral palsy. Ms Montgomery believed her doctor, Dr McLellan, had not disclosed the risks of shoulder dystocia, a form of obstructed labour, or discussed the possibility of an elective caesarean. If he had, Ms Montgomery said she would have elected to have a caesarean which would have reduced the chance of her baby being born with cerebral palsy. 

As a result of the ruling, doctors, and other healthcare professionals, are now under a clear duty to take reasonable care to ensure that patients are aware of all material risks.

Royal College guidance

The Royal College of Surgeons (RCS) has published new guidance on consent following the court’s ruling. The key principles are as follows: 
  • The aim of the consent discussion is to give the patient the information they need to decide what treatment or procedure (if any) they want.
  • The discussion has to be tailored to the individual patient, and requires time to get to know them well enough to understand their views and values.
  • All reasonable treatment options, along with their implications, should be explained.
  • Material risks for each option should be discussed with the patient. A risk is “material” if a patient could reasonably be expected to find the risk significant in their particular case. 
  • Consent should be written, recorded on the form and signed.
  • A record of the discussion should be included in the patient’s case notes. This is important even if the patient chooses not to undergo treatment.

From a legal perspective, it is vital that healthcare professionals understand how to conduct such discussions. Not having written proof of consent weakens the doctor-patient relationship and leaves professionals and managers open to legal challenges and litigation.


Patient consent must be underpinned by three key factors. First, a clinician must decide that the patient has the capacity to make a decision about their care. This means complying with the Mental Capacity Act 2005 (England or Wales), the Adults with Incapacity Act 2000 (Scotland), or the Mental Capacity Bill 2015 (Northern Ireland). Second, consent must be given voluntarily, without influence from anyone else. Third, the patient must be made aware of all key information to inform their decision. 

Managers should ensure these guidelines are followed to significantly reduce the chance of any legal repercussions from treatment given to a patient.

Linda Millband is national practice lead for clinical negligence at Thompsons Solicitors. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP rep or national officer.

If you enjoyed this article, please sign up to receive our free monthly emails - and we’ll keep you up to date on news and events in health and care management

Group of women smiling at a meeting

Local MiP reps and link members are entitled to time off for their trade union duties. Our legal advisers explain your rights.

20 May 2020 | By Richard Arthur
Legal Eye

It’s illegal for your manager or employer to victimise you for being a member of MiP or carrying out MiP activities. Here we explain the legal protection available to you.

23 December 2019 | By Rachel Haliday
Legal Eye

Thousands of NHS staff could soon lose their automatic right to work in the UK. Here's what you need to know about getting ‘settled status’ for your EU workers.

19 June 2019 | By Rachel Halliday
Legal Eye

We explain the legal position behind so-called ‘gagging’ clauses which are now a common feature of settlement agreements in the NHS.

12 March 2019 | By Natalie Hunt
Legal Eye

We explain the legal duties on employers to protect the psychological wellbeing of staff and support people suffering from mental health conditions.

04 October 2018 | By David Robinson
Legal Eye
Fat cat eating a bowl of food

The Civil Liability Bill will deny injury compensation to thousands of workers and cost the NHS millions – just to feed the insurance industry fat cats.

27 July 2018 | By Doug Christie
Legal Eye

We explain what you need to know about about putting in a claim to an Employment Tribunal – and when to do it.

24 April 2018 | By Bernie Wentworth
Legal Eye

With more and more people leaving the NHS under settlement agreements, managers need to know what can and can't be said. Iain Birrell explains the rules about so-called 'protected conversations'.

15 December 2017 | By Iain Birrell
Legal Eye

Here's what you need to know about the legal position on using social media at work, focusing on human rights, contract law and data protection.

29 September 2017 | By Jo Seery
Legal Eye

Here's what you need to know about your legal responsibilities as a manager when handling race discrimination complaints from staff.

24 June 2017 | By Rakesh Patel
Legal Eye
Find us

Centenary House, 93-95 Borough High Street, London SE1 1NL

Copyright © 2018 MiP