Negligence claims against the NHS due to failure to inform patients before they consent to procedures have spiralled up since the Supreme Court’s landmark Montgomery ruling in 2015, a new study has found.
The research, conducted 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 four times as fast since March 2015 – and where failure to inform was added as a contributory claim, the rise was nearly ten-fold.
Montgomery changed the legal test for determining what is sufficient disclosure before consent is given to treatment, from asking what a reasonable doctor would warn about to what a reasonable patient would expect to know.
The data, obtained through a Freedom of Information Act request, showed that of the 70,000 negligence cases against the NHS between 2005 and 2019, 2,301 were linked to a failure to inform as either the primary or a secondary head of claim, with a total value of £396m.
But the number has increased since 2015 and the cost of them to the NHS are rising: between 2011 and 2015, costs for settling these types of cases rose from £25m a year to £28m. But from 2015 to 2019, they were £62m per year.
“The rise was purely due to the increase in numbers of claims, as the cost per claim remained steady,” the study said.
Study lead David Wald, professor of cardiology at the university, said that while the ruling may have been reasonable in the context of the actual case, “our research shows that the broader implications of the ruling have had serious, unintended consequences for the NHS”.
He said the decision 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.”
Professor Wald continued: “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 identified an “urgent need” for hospitals to improve communication before consent and for Parliament to consider revising the legal framework.
“One of the problems for the NHS is the subjectivity of determining exactly what constitutes a material risk to a patient,” he said.
“This may differ considerably between patients undergoing the same procedure, based on lifestyles and hobbies which may not always be disclosed to doctors in the discussion before consent.”
With lawyers’ fees accounting for about 40% of costs paid by the NHS in settled claims over failure to inform, the research suggested a no-fault compensation scheme as an alternative.
Professor Wald has developed multilingual animations for medical and surgical procedures to help patients consider the benefits, risks and alternatives, and prepare any questions prior to treatment, to support the discussion before consent.
“Seeking consent is often rushed and people may not speak English fluently. Patients can feel under pressure to go ahead with treatment without really feeling in control of the decision.
“Improving communication before consent and making better use of the time available, helps doctors focus on what matters to patients and helps patients take responsibility for the ultimate choice.”