Consent in cosmetic surgery and aesthetics

The scope of the duty

The leading authority on scope of the duty in relation to informed consent is Montgomery v Lanarkshire Health Board [2015] UKSC 11 (‘Montgomery’), where the Supreme Court held that doctors are: 

"under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments."

This is best understood, both clinically and legally, as comprising two distinct steps:

1. Identifying the reasonable alternative or variant treatments; and
2. Explaining the material risks involved in those treatments.

Step 1 - Advising of reasonable treatment options

More recently, in McCulloch v Forth Valley Health Board [2023] UKSC 26 (‘McCulloch’),  the Court has clarified the meaning of reasonable treatment options, for the purposes of informed consent, confirming that determining whether an alternative treatment is reasonable, is a matter of professional practice and clinician-led and therefore governed by the test for breach of duty set out in the cases of Bolam and Bolitho, while disclosure of risks remains patient-centred.

• The Supreme Court provided a general example of what this means in practice at paragraph 57 of the judgment. Applying this to an aesthetics / cosmetic surgery setting, the following practical guidance can be drawn: A clinician must establish the patient’s goals, and should then compile a list of all possible ways of achieving them (always including the option to do nothing) based on their clinical expertise;

• Having compiled that list, the clinician should exercise their clinical judgment to determine which of those options are reasonable and inform the patient of all of those options, not simply the option which they prefer.

From this it can be discerned that a clinician will be in breach of their duty of care if they fail to discuss a treatment option which no responsible and logical body of clinicians would exclude as unreasonable.

In the aesthetic and cosmetic surgery sector, the consent process around reasonable alternative options can be complex, as there can be significantly more alternatives than in other fields. Which options are reasonable will be driven to an extent by the patient’s specific goals, making it essential that these are considered and a clear record of all discussions is made.

In practice, this burden (and the advice on risks outlined below) can be eased by the use of patient information leaflets. While these leaflets can assist with evidencing consent, they cannot replace a discussion with a suitably qualified and experienced clinician. Patient information leaflets are most evidentially effective if the clinicians and/or clinics ensure that each page is signed and dated by the patient, confirming they have read and understood all the information provided and a copy is appended to the patient’s medical records.

Step 2 - Advising of material risks

Having used their professional expertise to determine all reasonable treatment options, the clinician must explain to the patient the advantages, disadvantages and the material risks involved with each.  Determining the scope of this duty therefore involves an assessment of materiality.

Helpfully, the Supreme Court in Montgomery went on to consider the factors which must be taken into account when assessing materiality,  namely:

• The nature of the risk;
• The potential impact on the patient’s life if it materialised;
• The importance of the intended benefits to that patient;
• The alternatives available; and
• The risks associated with the alternatives.

It is essential that advice on risks and prospects of successful surgery is as accurate as possible and not overly optimistic. This was emphasised by the Court in Thefaut v Johnston [2017] EWHC 497 (QB), where it was held that the "at least 90%" chance of resolving leg pain was overly optimistic compared to the figure of 85% agreed by the experts. The Court concluded that this represented a substantial overstatement as the words "at least", which implied the probability could exceed 90%.

Who owes the duty?

Given the need for specialist expertise and experience both in respect of the determination of reasonable alternative treatments and accurate assessment of risks, it is clear that the duty will most commonly fall to the operating clinician. The cases of Darnley v Croydon Health Services NHS Trust [2018] UKSC 50; [2019] AC 831(‘Darnley’) and Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB)  indicate a willingness by the Courts to take a more expansive view. In the aesthetics and cosmetic surgery sector, this calls for a more holistic approach by clinics, surgeons and their representatives in the event of a claim.

At the initial stages of patients' enquiries, it is common for non-medical staff to be involved. Where they provide patients with information, there is a risk that a duty of care could be found to have been owed in relation to the standard of that information. The Supreme Court in Darnley clarified that, “…the degree of skill which can reasonably be expected of a person will be likely to depend on the responsibility with which he or she is charged”. So, although a duty may be owed by non-clinical staff, the standard expected of that advice is likely to be lower unless they go beyond the scope of their role.

Another consideration in the context of cosmetic surgery is the identity of the operating clinician. In the case of Jones v Royal Devon and Exeter NHS Foundation Trust [2008] EWHC 558 (QB), the Claimant arrived at hospital on the day of her proposed spinal surgery only to be informed that it was to be performed by a different surgeon than she had anticipated. The Court held that this constituted a breach of duty.

For cosmetic surgery procedures, patients will often research and choose a particular surgeon based on their expertise or reputation. Last minute changes - even where consent forms or other documents states no guarantee of surgeon – can carry liability risks in the event complications arise  or results are perceived as poor. 

When should the information be given? 

While discharging the duty of care does not require a specific amount of time for a patient to consider their decision, the courts have stressed the importance of allowing adequate time and space for dialogue.  In the case of elective procedures such as cosmetic surgery, consent obtained on the day of the surgery is unlikely to be acceptable, as by this stage the Court will consider the patient “psychologically committed to going ahead” (Thefaut) and under pressure to proceed.

Accordingly, caution should be exercised where patients have been provided with patient information leaflets in advance, but during the discussion with the surgeon on the day of surgery, new information is introduced, such as new risks or changes to the likelihood of known risks occurring, as this may undermine valid consent.

Creating good evidence

Cosmetic surgery procedures, where numerous possible permutations for surgery exist, require a clear and structured approach to note-taking. When documenting the consent process, the following format is recommended, with headings and bullet points made under each:

1. Patient objectives – Provide a detailed description, ideally verbatim with quotation marks.
2. Relevant patient-specific factors – Include any factors affecting available options or their relative risks and benefits.
3. Reasonable treatment options - Record all options that have been discussed and number/bullet-point them (including the option to do nothing).
4. Risks, benefits and disadvantages – Give each option its own heading, and for each option set out the specific risks discussed. Refer to any leaflets given.
5. Outcome and next steps - Record the outcome of any discussions, including the options that the Claimant is considering and the next steps.

Conclusion

Healthcare providers must be mindful that consent is not simply a matter of obtaining a signature on a consent form, nor can it be discharged by overwhelming a patient with statistics or information. It requires engaging in meaningful dialogue, listening to the patient, and tailoring information to their circumstances and goals. By adopting a structured approach to documentation, prioritising clarity in communication, and keeping abreast of developments in clinical practice, practitioners can minimise legal risk and, most importantly, support patients in making informed decisions about their care.