King's / Queen's Bench Division of the High Court

KB-2023-001134 - [2025] EWHC 2121 (KB)

Fecha: 08-Ago-2025

Guidance of the RCS and the GMC

Guidance of the RCS and the GMC

62.

Mr Elgot drew my attention to various guidance documents produced by the Royal College of Surgeons and the General Medical Council. He placed particular emphasis on the following as evidence of the relevant standard of care:

RCS – Good Surgical Practice 2014 guidance:

“1.3
Surgeons must ensure that accurate, comprehensive, legible and contemporaneous records are maintained of all their interactions with patients.
Ensure that a record is made by a member of the surgical team of important events and communications with the patient or supporter…
Ensure that there are clear … operative notes for every procedure. The notes should accompany the patient into recovery and to the ward and should give sufficient detail to enable continuity of care by another doctor. The notes should include:
… Any problems/complications….”

RCS – Consent: Supported Decision-Making – A Guide to Good Practice 2018

“Key principles
…
In addition to the consent form, a record of discussion (including contemporaneous documentation of the key points of the discussion, hard copies or web links of any further information provided to the patient, and the patient’s decision) should be included in the patient’s case notes…”
4.8
Timeframe for consent discussions and the signing of the consent form
… Patients should be given enough time to make an informed decision regarding their treatment, wherever this is possible and not adverse to health. This may require that the discussion takes place over more than one session for particularly complex or life changing decisions. The process of consent should begin well in advance of the treatment …
… the consent form should be signed at the end of the discussion, provided the patient has reached the decision to go ahead with a treatment. This will allow the patient to take away a copy of the form alongside all relevant information, for reference and reflection. For an elective procedure they should also receive a letter or a copy of the letter to the GP/ the referring doctor that gives an account of the discussion that has taken place…
4.10
A decision-making record
The signing of a consent form by a patient does not amount to valid consent for treatment … the patient’s consent will be invalid if they have not been given the appropriate information, communicated in a way that they can understand well enough to make a decision.
In addition to completing the consent form, surgeons should maintain a written decision-making record that contains a contemporaneous documentation of the key points of the consent discussion…. This could be in the form of a letter to the patient and their GP/referring doctor. The record should also contain documentation of any discussion around consent with the patient’s supporters and with colleagues. Any written information given to the patient should also be recorded and copies should be included in the patient’s notes…”

63.

Various GMC guidelines were similarly relied upon in terms of good record keeping and the consent process, including the GMC’s “Guidance on professional standards and ethics for doctors, Decision making and consent” 2020. That guidance sets out seven principles of decision making and consent, including:

“Principle One: 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”.
…
Principle Four: 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”
…
8.
The exchange of information between doctor and patient is central to good decision making. It’s during this process that you can find out what’s important to a patient, so you can identify the information they will need to make the decision.
9.
The purpose of the dialogue is:
a.
to help the patient understand their role in the process and their right to choose …
b.
to make sure the patient has the opportunity to consider relevant information that might influence their choice between the available options
c.
to try to reach a shared understanding of the expectations and limitations of the available options….
31.
You must be clear about the scope of decisions so that patients understand exactly what they are consenting to… Agreeing the scope of the patient’s consent with them in advance is particularly important if:
….
(d)
there is a significant risk of a specific harm occurring during an intervention, which would present more than one way to proceed…”

64.

Ms Power submitted that the GMC guidelines do not add anything to the duty of care set out in Montgomery, relying on Johnstone v NHS Grampian [2019] CSOH 90, at [131] in which Lord Glennie observed that GMC guidance may set out good practice and will therefore inform the content of the Montgomery duty of care, but they are not prescriptive of the steps which a doctor must take in dealings with the patient when it comes to allegations of negligence. I adopt a similar approach in this case: the guidance of the RCS and GMC to which I have been referred may assist in relation to issues concerning the appropriate standard of care, but they provide no more than guidance in this regard.