Consent for post-operative visual loss in prone spinal surgery: aligning clinical practice with legal standards

Abstract

In March 2015, the Supreme Court’s landmark ruling on the common law case of Montgomery vs Lanarkshire Health Board established the doctrine of informed patient consent, setting the legal standards that doctors should abide by. In this review, our primary aim has been to establish whether, despite the well-publicised implications of the ruling in the legal community, the medical profession has altered its practice. To do this, we reviewed the consenting methods applied by surgeons within our field of neurosurgery. We chose the rare, but disabling, material risk of prone spinal surgery: post-operative visual loss (POVL), as our tool for assessment. Departmental and national surveys both identified a common theme – the vast majority of doctors consenting patients for prone spinal surgery either do not consider POVL to be a serious material risk, or alternatively are not aware that current legal standards require them to ensure that patients are made aware of ‘any’ material risk involved in their treatment. In light of this finding, we discuss the legal implications of the Montgomery ruling, the current regulatory guidance available to support doctors, suggest some strategies to align clinical practice with the legal standards advocated by the ruling, and highlight some of the challenges surrounding the consent process given the legal framework in which we now practice.