Who is at risk from e-consent?

With the increasing use of e-consent, how do clinicians reassure themselves that they have obtained their patient’s informed consent to treatment?

All responsible clinicians will now be familiar with the case of Montgomery vs Lanarkshire Health Board. Following this case, a clinician has a duty to warn their patients of “material risks”. A “material risk” is one to which a reasonable person in the patient's position would attach significance.

For many procedures from planned elective surgeries to reconstructive breast surgery, NHS Trusts are now relying on digital support for shared decision-making and consent. Suitable patients are encouraged to watch online videos explaining the risks and benefits of their treatment, take tests to check that they have understood this and complete online forms confirming that they consent to the care planned or proposed.   

This online provision has streamlined many pre-operative pathways for patients and Trusts, freeing up much needed time for those patients with complex comorbidities or other needs who still need in-person consultations. 

The question then turns, however, to who is choosing the content of these e-consent platforms and who is responsible should a patient not be warned of a material risk. One provider of e-consent prides itself on having never been the subject of an indemnity claim. They collate information from different organisations around the UK and abroad, have committees in different specialisms who consider the latest research and constantly review their database to check that it remains up to date. Their consent forms have in fact been cited in cases as the “gold standard” of consent. Simply by virtue of the amount of information distilled into these platforms, there is an argument that these providers could become benchmark setters for what is valid consent. 

Trusts who use such e-consent processes should check with their e-consent product providers what systems they have in place to ensure that their material takes into account the latest medical knowledge. It should also not negate the need for clinicians to reassure themselves that their individual patient understands the treatment they are undergoing and the risks and benefits and alternatives to this. E-consent cannot become a tick box exercise but clinicians need to confirm consent for their individual patient, whether this is done at the pre-operative consultation or at another point before the operation.

Bevan Brittan has successfully defended many clinical negligence cases arising from consent and is a specialist in digital healthcare litigation.