Healthcare Professional Standards in Pandemic Conditions: The Duty to Obtain Consent to Treatment.

"The U.K. Legal Position on Risk Disclosure Strongly influenced by the seminal Australian case of Rogers v Whitaker ([1992] 175 CLR 479), the landmark decision in Montgomery v Lanarkshire Health Board ([2015] UKSC 11 [87]) reaffirmed that U.K. healthcare practitioners are under a duty to inform patients of the material risks of a proposed treatment and of any reasonable alternative or variant treatments. The Supreme Court rejected the old doctor-centred test for materiality and adopted the test in Rogers, defining materiality as existing ifin the circumstances of the particular case, 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. (Montgomery [2015] [87]) Montgomery was grounded in what the court saw as wider developments in law, professional regulation, and society that emphasized the importance of respecting patient autonomy. In relation to risk disclosure, the court held that the law should treat patientsso 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. (Montgomery [2015] [81]) Since Montgomery, healthcare professionals and lawyers have been attempting to determine its parameters. It represents as much a general philosophy (that healthcare law must be patient -centred) as a detailed account of the legal rule that it provides. The question of how much information is required to be given to patients about the benefits and risks of proposed treatment remains uncertain, with subsequent court decisions compounding a lack of clarity on the boundaries of the duty (Devaney et al. 2019). COVID-19 has exacerbated this uncertainty, adding complexity and increasing pressures on resources. In the face of insufficient numbers of appropriately trained or specialized staff to cope with the demands the pandemic would place on the system, the government widened the net of possible healthcare providers in the Coronavirus Act 2020.1 This has resulted in the recruitment of retired practitioners (BBC News 2020) and students nearing the end of their studies, as well as staff who had moved on to other sectors, and the retraining and relocating of existing providers. Questions can legitimately be raised about whether these groups of practitioners have sufficient up-to-date knowledge and experience about the material risks posed by proposed treatments to engage fully in shared decision-making with patients. Should patients be expected to forgo their right to risk disclosure under these circumstances, whether in relation to treatment for COVID-19 symptoms or any other condition? We consider this in relation to two aspects of the capacity to discuss the risks and benefits of and alternatives to proposed treatment with patients: first, a lack of the skills required to do so; and second, the extreme conditions under which such attempts might be made."

"University of Manchester"