The new GMC guidance on consent: still a step beyond Montgomery

Dr Philip White, Medicolegal Consultant at Medical Protection, looks at the potential impact of subtle changes of wording in the GMC’s new consent guidance

From November 2020, the GMC’s new consent guidance, Decision making and consent, comes into force. While some subtle new wording keeps the guidance ahead of the landmark 2015 Montgomery ruling,[i] it is worth looking more closely at what it is and exactly what it might mean.

The new stance relates to the giving of risk information. The previous GMC guidance, which has been in place since 2008, states:

“You must give patients the information they want or need about…the potential benefits, risks and burdens, and the likelihood of success, for each option.”

The 2020 guidance states:

“You should usually include the following information when discussing benefits and harms…any risk of serious harm, however unlikely it is to occur.”

What is the Montgomery case?

The Montgomery case in 2015 set the legal precedent on risk communication for consent by establishing a duty of care to warn of material risks. Material is where “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.[ii]  

In other words, important risks need to be discussed. Some suggested that the Montgomery ruling was just the law catching up with the GMC guidance at the time.[iii] However, Montgomery – in ruling important risks are given – arguably didn’t go as far as the GMC now suggesting potential risks are given.

How do you properly explain the risks?

The new GMC guidance isn’t significantly different from the old regarding communication of the level of risk. “Must give” has changed to “should usually include”, and “potential risks” has changed to “any risk…however unlikely”.

On first reading, some clinicians might be worried about the change to “any risk…however unlikely” but changing “must” to “should” suggests the overall meaning hasn’t changed. This is supported by a tweet from the GMC:

“Our updated guidance is actually less prescriptive on this point. We’ve changed the wording from ‘must’ to ‘should usually’ trusting doctors to use their professional judgement to apply the guidance in proportion to the specific circumstances of the decision.”

Currently, some clinicians probably don’t discuss the risks of treatment to GMC standards, as they don’t have the time or knowledge of all the risks, nor do they want to scare the patient from having treatment that they would probably have themselves. Knowing what information a patient wants is difficult. It is a subjective exercise and doctors like facts. Some patients will want to know there’s a tiny chance of dying from taking amoxicillin while others will not, and it is hard to tell one from the other.

It’s not immediately obvious what this subtle change in wording means. It could be getting closer to telling patients of the risk of death with amoxicillin. One barrister on Twitter posted: “It says doctors should usually disclose any risk of serious harm even if utterly miniscule.” This approach can’t be good for patient care or autonomy, and in court it is likely doctors would be examined against the more realistic Montgomery level of risk.

So while the new GMC guidance hasn’t changed its position significantly on the advised level of risk communication, it is still a notable step beyond Montgomery.