I hope you have had a chance to read my briefing note on the Montgomery case, which essentially re-writes the rules on how we obtain consent from our patients. It obviously applies across all specialties.
What do we need to do to comply with the new rules? I’ve attached below an extract from the best account I have come across; it’s written by a clinical negligence barrister who assisted two of the Law Lords on the Montgomery case. The guidance is easy to follow and understand; the big question is, can we fit this into our busy clinical schedules with limited time to see patients?
Practical impact: Ten Commandments
There is no doubt that Montgomery makes life more complicated for the medical professional. Litigation around issues of consent remains unpredictable in the wake of the Supreme Court's judgment, but the following tips might help medical professionals to obtain a foothold in the legal quagmire:
Of course, failing to obtain consent from patients is not just a concern from the perspective of potential civil claims or disciplinary action. In some cases it may also raise the spectre of criminal liability for assault and/or battery. These are the high stakes for the medical professional, and they necessitate and require careful adherence to the relevant guidance from regulatory bodies.
Dr Stefan Maz
Up until recently, the law on informed consent was largely based on two cases; Bolam (1957) and Sidaway (1985). The Bolam case stated that “a doctor was not guilty of negligence if he had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art”. In other words, if you can show that other doctors would have done the same, you weren’t negligent.
The case of Sidaway acknowledged that doctors did not always warn patients of all the risks of a particular procedure or course of treatment. This too was not negligent, provided that “the omission was accepted as proper by a responsible body of medical opinion”. In other words, if other doctors would not have mentioned a particular risk in the circumstances either, you weren’t negligent.
Then along came the case of Bolitho in 1998, where the court decided that “notwithstanding the views of medical experts, the court may conclude that their opinion is incapable of withstanding logical analysis”. In other words, it didn’t matter what the medical experts thought; if it didn’t make sense to the judge, he wouldn’t accept their opinion. For the first time, the medical profession did not have the last say on what was or was not negligent; the courts did.
Finally the Supreme Court case of Montgomery (2015) rewrote the rules altogether. The principles of Bolam and Sidaway no longer apply to obtaining consent. We have a different set of rules now.
“Medical paternalism”, the old “doctor knows best” attitude, has been gone for some time. This was acknowledged by the Law Lords in Montgomery. If you think judges are out of touch with modern society, just read these extracts from their judgement:
“. . . it has become increasingly clear that the doctor-patient relationship . . . has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development . . . is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public”.
“ . . . it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. . . It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation . . . “
The new rules
We can no longer decide how much to tell patients. We have to discuss all options with patients, explaining the risks, benefits, burdens and side-effects of each option, including the option to have no treatment. We may recommend a particular option which we believe is best for the patient, but we cannot appear to be putting pressure on the patient to accept our advice.
In case this sounds strangely familiar, you would be right; it’s taken from the General Medical Council’s guidance on “Consent: patients and doctors making decisions together” published in 2008. Up until now, we have all tried to follow the guidance “more or less” within the time scales allowed to us for seeing patients; now we have to follow it to the letter as it has the full force of the Supreme Court behind it. Don’t expect the GMC to go soft on you if a patient (or their lawyer) claims you did not explain all the options to them in detail.
If a patient insists that they do not want to be informed about any risks, we cannot insist that they listen.
So far, we have been talking about the “average” reasonable patient. The new rules now oblige us to consider what is particularly important to each individual patient, for example, someone whose hobby is singing might be particularly concerned about damage to their vocal cords from intubation, and this is something we would have to discuss in more detail. This means that we have to know much more about our patients and their backgrounds than we currently do. A general practitioner who has known a patient over many years will probably have such background information, but I suspect it is much harder for a hospital doctor to build up this degree of familiarity unless you see the patient regularly in your clinic.
A patient may ask specific questions about their proposed treatment, in which case you obviously provide honest answers, as you have always done. If your patient is vague and expresses concern, it is up to you to find out what is behind that concern and answer appropriately. Questions, and your answers, must be recorded fully in the notes.
All this implies that we shall all have to spend far more time consenting our patients, or use the limited time we have in a “smarter” way. The Supreme Court has made it clear that the excuse that “it is impossible to discuss the risks associated with a medical procedure within the time typically available for a healthcare consultation” will not be tolerated. The judgement states “it is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers . . . The approach which we have described has long been operated in other jurisdictions, where healthcare practice presumably adjusted to its requirements”.
Patient information leaflets are in common use, and have been put forward as one way to solve the problem of getting more information across without greatly prolonging required consultation times, but they cannot be used in place of a face-to-face discussion. The Law Lords state that “the doctor’s advisory role involves dialogue”, and “the doctor’ duty is not therefore fulfilled by bombarding the patient with technical information which (s)he cannot reasonably be expected to grasp”.
Some good news?
There are benefits to this new approach to the consent process. The Law Lords acknowledge that “the social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors and then being prone to sue their doctors in the event of a disappointing outcome, treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices”.
Will patients now actually accept some responsibility for their own health or continue to blame us each time something goes wrong? I shall endeavour to keep you informed with any developments as they arise.
We are setting up Sheffield Little Lifesaving Group as a charitable organisation for doctors to teach lifesaving skills to the general public on a voluntary basis. We plan to teach paediatric Basic Life Support and management of choking to parents and carers- which was really well received during the doctors’ strikes last year- and also to start offering sessions in schools, teaching BLS to school children.
If you have appropriate qualifications and experience (ALS/APLS or similar) and would like to get involved, we would really welcome your input! All grades welcome.
Obviously we are all busy people so cannot commit to lots of time spent volunteering, but we hope to gather together a big enough membership “pool” that we could offer a few sessions a year and people would only need to volunteer now and then when they have time. There will be a system (called signup.com) to enable you to see what sessions are coming up and to sign up for the ones you would like to teach on.
We have a group bank account now and will be applying for funding for our own mannequins. We have plans to run drop-in sessions at “Slings in the City” (a sling library session run by the Sheffield Sling Surgery) and at the new play cafe “Tiny Feet Bistro” near Rotherham. We would like to run sessions at Children’s Centres and schools if we can get enough enthusiastic volunteers!
If you would like to join us, please complete this google form: http://tinyurl.com/hyavjpw to let us know a little about you and so that we can keep in contact and get you involved.
Please spread the word amongst your colleagues too.
We will be grateful for your thoughts, suggestions and support in developing the project. Essentially, this group will be run by its members. We plan to arrange a general meeting at some stage over the next few months so we have a chance to meet, share ideas and discuss how it will work. We also plan to run the first few sessions in the next couple of months too.
You can also find us on Facebook.
The public page is at: https://www.facebook.com/volunteerdocsteachinglifesavingskills/
The behind-the-scenes page for volunteers is at: https://www.facebook.com/groups/256545854693227/
How to improve your public speaking skills
Jerry Seinfeld said “According to most studies, people's number one fear is public speaking. Number two is death. Death is number two!!! Does that sound right? This means to the average person, if you go to a funeral, you're better off in the casket than doing the eulogy.”
Managing speaking anxiety has been a challenge for me, but I have started to enjoy the journey and today I am going to share with you some tips and techniques that might be beneficial for you too.
I am not a natural born public speaker at all and have never really enjoyed being on stage to inform, educate or entertain. At medical school and during postgraduate training I managed somehow but when I decided to move from Germany to the UK there was the additional issue of English not being my first language. I became quite self-conscious, started to avoid speaking up in meetings and kept quiet. I knew that people did not care if I had used ‘present perfect’ or ‘past perfect continuous’ correctly but in my head there was a fear of being negatively judged.
On the whole I am not a very anxious person and confident in my dealing with patients and colleagues. After a decade in general practice, I have now been working as a SAS in dermatology for a while and I love what I do and do what I love. My communication skills have never been an issue. However, this specific fear was more than just a bit of stage fright, it was a phobia with classical fear-avoidance behaviour. As a result of this I had to turn down several speaking appointments which really impacted on my confidence, as I felt I had a lot to share. I felt restricted and limited and had been missing out on many great opportunities. I was determined to do something about it; speaking up without freaking out was my ultimate goal.
Speaking anxiety is a complex mix of physiological and psychological factors. It is cognitively intense, fatiguing and significantly affects mental processing. There is no magic remedy or quick fix to becoming a confident, calm and competent presenter and it requires more than just the simple suggestions ‘practise, breathe and just do it’. It is hard work, believe me.
My journey started off with an analysis of what had triggered my communication apprehension (real-time anxiety caused by actually speaking and the anxiety that comes with just thinking about speaking) and I also took the PRPSA test, a validated tool developed by communication scientists to quantify speaking anxiety.
What’s next? Once the ‘diagnosis’ was made I started to look into the abundance of available resources, searching for practical tips and hands-on advice that I could try out. A selection of my favourites is listed in the resource section below. There is no ‘one-size fits all’ approach, it is very much a multimodal, ‘trial and error’ approach.
Research in strategic communication has shown that the impact of the spoken word is only 7% and this means that 93% of what we try to communicate is actually non-verbal via our body-language, voice and eye-contact! These figures have really highlighted to me the importance of not only preparing high-quality content and keeping it concise and digestible (remember: you simply can’t cover everything) but also the significance of paying attention to your delivery style.
My recent attendance at a conference reiterated this; highly capable doctors presenting their research in a way that is far from captivating: speaking to their busy slides and turning their backs to the audience! There was no engagement or connection with the listeners and it felt like a waste of time. A good hand out would have done the same.
I was looking for a place to work on my non-verbal skills, a place where I could practise different strategies and techniques in a supportive and constructive environment, an opportunity where it would be okay to make a fool of myself or screw up but learn from it. I have joined Toastmasters International and Sheffield Speakers Club; both organisations hold regular monthly meetings and are excellent platforms to put what you have learned into practice and experiment with all the tools out there.
Below are a few strategies that I have found useful, practical and not too difficult to implement:
Reframing gives the entire situation a positive connotation and a more helpful mind set. As simple as it sounds, relabelling anxiety as excitement and speaking as an opportunity rather than a threat can be beneficial in calming the nerves.
Visualisation is a technique borrowed from sports psychology where you walk yourself through an ideal speaking experience in your mind’s eye. It is not about rehearsing your content mentally, it is about envisioning yourself performing successfully. This is an extremely efficient way to reduce anxiety and establish new thought patterns.
Smile and be present without thinking about the outcome of your presentation. Smile and the world smiles with you…a sincere smile puts you and your audience in a good mood before you even have said a single word. J
Power Posing has been subject to research by several strategic communication scientists and is a highly interesting field. Apparently there is a link between your body language and your cortisol and testosterone levels. High power poses are open and relaxed (think Mick Jagger, John Wayne or Wonder Woman) and reduce cortisol while raising testosterone which in turn makes you more relaxed and less stressed, yet assertive and confident. Low power poses are closed and guarded.
Making this work in real life is not difficult as it is easy to adjust your body language. Short practice of two minutes at a time is all that is needed. If you want more, you can watch Amy Cuddy’s famous TED talk about her research on this subject, which is one of the most popular talks of all time.
The public speaking journey often feels like a bumpy road but simply knowing that you can have a dramatic impact on your speaking anxiety is empowering and inspiring, and ‘I have learned that courage is not the absence of fear, but the triumph over it’ (Nelson Mandela).
Presentation Zen: Simple Ideas on Presentation Design and Delivery (Voices That Matter) Paperback–8 Dec 2011, by Garr Reynolds
How to be Brilliant at Public Speaking: Any Audience. Any Situation Paperback– 13 Sep 2011, by Sarah Lloyd-Hughes
Rule the Room: A Unique, Practical and Comprehensive Guide to Making a Successful Presentation Paperback–1 Jan 2014, by Jason Teteak
http://ethos.conorneill.com/improve-your-speaking/ very useful webpage with lots of practical tips and a free email course ’10 Powerful Public Speaking Practice Exercises’.
http://www.jamescmccroskey.com/measures/prpsa.htm PRPSA tool to measure your level of anxiety.
For free of charge presentation and communication skills courses listed by Yorkshire & Humber HEE, click here.
We are all required to reflect on our learning experiences for Appraisal and Revalidation; this is a GMC requirement (Domain 2, section 22b). You will know that the MAG form and online CPD diaries have sections to record your reflections for your personal development and appraisal records. In the unfortunate event that you are referred to the GMC, they will want to see evidence of reflection in your portfolio.
However, there has been a recent case where a doctor consented to the release of their reflective notes which were then used as evidence against them. Lawyers have found out that we keep reflective notes, and it is likely that there will be more such requests in the future, even though our reflections are part of our educational toolkit and not part of the patient’s clinical records. The Academy of Medical Royal Colleges has issued guidance on how to enter reflective notes on e-portfolios, but has hinted that it will not oppose any application made to court to release your notes.
Apart from lawyers, who else could demand to see your reflective notes? The GMC, the Coroner, the Police, perhaps even patients making a complaint or suing for negligence.
What can you do to protect yourself? You cannot simply stop making reflective notes, that would make you even more vulnerable to attack. The Academy of Medical Royal Colleges has issued the following guidance:
If you would like to read the full guidance document from the Academy of Medical Royal Colleges, here’s the link:
My advice would be; don’t lose any sleep over this, just follow the simple rules above. The chances are that your reflective notes will not reveal anything that is already available in the patient’s clinical records.
Above all, do not stop writing reflective notes, that’s probably the worst thing you can do – just be careful what you write.
Rotherham NHS Foundation Trust
SAS doctors make a major contribution to healthcare services in the UK. They represent up to one third of the permanent medical workforce in many NHS Trusts. How to ensure the effective development of SAS doctors has been a persistent dilemma for the last 15 years. There has, however, been significant progress since 2008 for those SAS doctors wishing to develop their careers. The creation of the SAS Fund was a necessary first step for the career development of this group. Despite this good progress there is still much to be done to best utilise the abilities of this important group of experienced doctors. This remains a challenge for the BMA and for other medical education and development institutions.
The ability to apply for entry onto the Specialist Register via the CESR route was an important motivating step for all SAS doctors wishing to develop their knowledge and skills and progress with their career. The creation of the SAS Tutor/Lead post back in 2008 was an essential first step. The role of the SAS Lead has been expanded further over recent years to include motivation of the group and the promotion of self-development, in addition to managing the SAS fund.
It was necessary to maintain the development of the SAS Leads to enable them to be well equipped for their important new role. The key component of this role is managing a diverse group of doctors with varied experience working across a broad range of specialties. NACT UK offer two educational meetings annually for SAS Leads and SAS doctors. The SAS Leads Development Day on 30 September 2016 was a particularly effective educational day, comprising high-quality presentations from interesting and motivated speakers. A particularly useful part of the day was the opportunity to share thoughts and ideas with other SAS Leads.
Barriers to development
Currently the continuous and gradual reduction of the SAS fund over the last few years with the possibility of this fund being abolished entirely is a major concern. Furthermore, and according to a BMA survey, only about 20% of SAS doctors attempted application onto the Specialist Register via the CESR route. Only half of these applications were successful. In addition there are some 60% of SAS doctors who are not taking advantage of the SAS fund since it is optional for the individual doctor. Further funding would be needed to implement a recognised development programme and would be equally needed for credentialing. Many SAS Leads are having problems with time for fulfilling their duties but this is quite variable between Trusts.
Suggested solutions and the way ahead
The future of SAS development should include a recognised development programme. Such a programme should be recognised and structured by the Royal Colleges for each specialty and include formal assessment similar to that for doctors in training. This programme should be completed by any SAS doctor in practice which would lead to proper utilisation of the available funding and study leave. In my view, utilising greater investment in this programme would result in a dramatic improvement in the knowledge, skills and hence services provided by this group regardless of career progression. Credentialing is another means to formally assess SAS doctors but without a formal development programme only a few would benefit. The responsibility of the Trust for the development of any employed SAS doctors should be clarified and characterised to maintain and improve the service. SAS doctors should have the same opportunities as their consultant colleagues for holding clinical supervisor, mentor, appraiser and managerial posts.
One of our SAS colleagues, Mr Makani Hemadri, Associate Specialist in Surgery, has published a mini e-book which promises to be of great interest and value to all. He introduces it here: