Our Legal Director Ken Lauder has recently been asked to provide advice about potential medico-legal issues which might arise from remote consultations in relation to consent to treatment.  As in many other walks of life, the ongoing pandemic has meant that doctors and other medical professionals have increasingly required to consult with patients remotely, including by online video consultation.

Inevitably, there are a number of practical considerations involved in an effective video consultation, which might mean that communication is not as satisfactory as in an actual face to face meeting. Essentially, if there are any issues around the quality of either the sound or video, it may affect the overall quality of the discussion between doctor and patient.

The latest guidance to doctors from the General Medical Council (“GMC”) includes various principles of consent which apply in most situations:-

  • All patients have the right to be involved in decisions about their treatment and care and be supported to make informed decisions if they are able.
  • Decision making is an ongoing process focused on meaningful dialogue: the exchange of relevant information specific to the individual patient.
  • All patients have the right to be listened to, and to be given the information they need to make a decision and the time and support they need to understand it.
  • Doctors must try to find out what matters to patients so they can share relevant information about the benefits and harms of proposed options and reasonable alternatives, including the option to take no action.

There are other principles which may apply in some situations, such as when there are issues around capacity to provide consent. However, the key part of the latest GMC guidance is probably the emphasis on “meaningful dialogue”. This clearly includes patients being listened to and follows on from the landmark decision of the Supreme Court in Montgomery v Lanarkshire Health Board from 2015, which emphasised the significance a reasonable person in the patient’s position would place on information as the relevant test. What matters to one patient may obviously be different from what matters to another and is likely to depend on individual circumstances

Remote consulting should not affect whether or not a meaningful meeting takes place. Even so, it must be possible that any issues around an online consultation will influence its effectiveness.

Any failure to follow the GMC guidance and, in particular, any failure to appropriately explain risks involved in medical treatment or alternative options may, by itself, lead to a claim for damages. This is because, for consent to treatment to be valid, it must be informed consent and for it to be informed, the patient must be given appropriate information about what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen without treatment.

Ken Lauder is highly experienced in dealing with clinical negligence claims, including informed consent claims.  He and other members of our Litigation team will work with you to achieve the best outcome for you if you have a claim.

If you would like further information on the topic discussed in this blog, please contact Ken Lauder by email: klauder@gilsongray.co.uk or by phone: 0131 516 5365 / 07841 920 101. You can also view Ken’s profile by clicking here.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.

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