Obtaining Valid Consent in Obstetrics and Gynaecology

Key Legal Framework

Montgomery v Lanarkshire (2015)

• Supreme Court ruling that fundamentally changed consent law in the UK
• Replaced the Bolam test (what a reasonable body of doctors would disclose) with a patient-centred standard
• Doctors must disclose any material risk that a reasonable person in the patient's position would attach significance to
• A risk is "material" if a reasonable person would consider it significant, OR if the doctor is (or should be) aware that this particular patient would consider it significant
• Applies to risks, benefits, AND alternatives (including no treatment)

Key Principles of Valid Consent

1. Voluntariness: consent must be given freely without coercion
2. Capacity: the patient must be able to understand, retain, weigh, and communicate their decision
3. Information: sufficient information provided about risks, benefits, and alternatives
4. Consent is an ongoing process, not a one-off event — can be withdrawn at any time

Mental Capacity Act 2005

Assessment of Capacity

A person lacks capacity if they are unable to:

1. Understand the information relevant to the decision
2. Retain that information long enough to make the decision
3. Weigh the information as part of the decision-making process
4. Communicate their decision (by any means)

Key MCA Principles

• A person must be assumed to have capacity unless established otherwise
• All practicable steps must be taken to help the person make a decision before concluding they lack capacity
• An unwise decision does not mean a person lacks capacity
• Decisions for incapacitated patients must be in their best interests
• Consider: patient's past wishes, beliefs, values; views of family and carers; least restrictive option

Young People and Consent

Gillick Competence

• Children under 16 may consent to treatment if they have sufficient understanding and maturity to fully comprehend what is proposed
• Established by Gillick v West Norfolk (1985)
• Assessed on a case-by-case basis for each decision

Fraser Guidelines

• Specifically relate to contraceptive advice/treatment for under-16s
• Criteria: the young person understands the advice, cannot be persuaded to inform parents, is likely to begin/continue sexual activity, their health will suffer without treatment, treatment is in their best interests

16-17 Year Olds

• Can consent to treatment (Family Law Reform Act 1969)
• Cannot refuse treatment if the court or person with parental responsibility consents — but this is rarely exercised

Consent in Emergency

• If a patient lacks capacity and cannot consent, treatment may be given in their best interests without consent
• Document the clinical reasoning clearly
• Treat to preserve life and prevent serious deterioration
• Use the least invasive option
• As soon as the emergency resolves, obtain formal consent for ongoing treatment

Advance Directives (Advance Decisions)

• A competent adult can refuse treatment in advance for a time when they may lack capacity
• Advance decisions to refuse treatment are legally binding if: made by an adult (≥18), made voluntarily, the person had capacity when it was made, it is applicable to the current circumstances
• Advance decisions to refuse life-sustaining treatment must be: written, signed, witnessed, and include the statement "even if life is at risk"
• An advance decision cannot demand treatment — only refuse it

Common Consent Scenarios in O&G

Caesarean Section

• Risks: haemorrhage, infection, thromboembolism, bladder/bowel injury, need for further surgery, implications for future pregnancies (VBAC, placenta accreta), fetal laceration
• Benefits: safe delivery, avoidance of identified risks of vaginal delivery
• Alternatives: vaginal delivery, instrumental delivery

Hysterectomy

• Risks: haemorrhage, infection, VTE, ureteric/bladder/bowel injury (ureter injured in ~1% of procedures), vaginal vault prolapse, loss of fertility, ovarian failure (if oophorectomy), psychological impact
• Type: total vs subtotal, with or without bilateral salpingo-oophorectomy

Laparoscopy

• Risks: port-site complications, visceral injury (bowel, bladder, vascular — 1-2 per 1000), conversion to laparotomy, gas embolism, shoulder tip pain

Documentation Requirements

• Record that discussion took place, what was discussed, and the decision reached
• Note specific risks, benefits, and alternatives discussed
• Record questions asked by the patient
• If using written consent forms: should supplement (not replace) verbal discussion
• If patient declines recommended treatment: document their decision and the information provided

Important Facts for MRCOG

• Montgomery (2015): material risk standard replaced Bolam for consent
• Capacity: understand, retain, weigh, communicate
• MCA 2005: assume capacity unless proven otherwise
• An unwise decision does NOT mean lack of capacity
• Gillick competence: under-16s can consent if sufficiently mature
• Fraser guidelines: specifically about contraception for under-16s
• Advance decisions to refuse life-sustaining treatment must be written, signed, and witnessed
• Consent is a process, not a form — can be withdrawn at any time
• In emergency without capacity: treat in best interests

Source: RCOG Clinical Governance Advice No. 6 / GMC Guidance (2015 (post-Montgomery ruling))

Read the original on rcog.org.uk

Clinically reviewed by NHS obstetricians and gynaecologists · Source last updated 2015 (post-Montgomery ruling)

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