How do I make sure I have patient consent?
A year ago a landmark Supreme Court ruling introduced the concept of ‘informed consent’ to the law of clinical negligence. Here’s what GPs need to know
Consent underpins much of what we do for patients and is central to the GMC’s professional standards. While we may feel familiar with the consent process, it is a complex area and there is always a risk that we might assume too much of patients or simply become complacent about what is required.
Disputes about the adequacy of consent are a familiar feature in clinical negligence claims and one such case in 2015 led to a reappraisal of the way doctors provide information and explain the nature and risks of a procedure.
Montgomery v Lanarkshire Health Board concerned a woman who had given birth to a baby with cerebral palsy and shoulder dystocia. The patient, who had diabetes, said that she had expressed concerns about the size of the baby but she was not warned about the risks of a vaginal delivery or offered a caesarean section. While she was initially unsuccessful, the patient eventually took her case to the Supreme Court which ruled that a doctor has a duty to take reasonable care to ensure the patient is aware of any material risks in proposed treatment and reasonable alternatives.
Significantly, the Supreme Court approached this from the patient’s, rather than the doctor’s perspective. Previously the adequacy of information provided to a patient was ordinarily assessed by reference to a responsible body of reasonable medical opinion. Now, the Supreme Court ruled that patients should know of material risks, and a risk would be ‘material’ if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that their particular patient would be likely to attach significance to it.
It’s worth remembering that to a large degree, this ruling reflects the GMC’s long-standing guidance on consent which requires you to ‘give patients the information they want or need’ about a range of factors, including diagnosis, options for investigation and treatment, potential benefits, risks and burdens of each option and the likelihood of success.
GPs may want to review their consent routine to ensure it meets the latest ethical and legal standards. Here some tips:
1. Consent is not one-off. Think of consent as a process not a one-off exercise. It involves providing information, answering the patient’s questions and giving them the opportunity to consider the information and to raise questions.
2. Find out what matters to patients. Start the discussion by asking patients what they want to know and what matters to them. Most people want to hear relevant information which would usually include the options that are realistically available and the associated risks, including the pros and cons of having no treatment. However, some will want to know everything about their condition and you need to be ready for this eventuality.
When discussing complications, it is important to focus on what you think would be of significance to the patient in front of you, rather than just listing those that are most likely to occur.
3. Make sure patients understand. Think about how you can help patients’ comprehension. This might be as obvious as avoiding technical language but could also mean using visual aids and even asking the patient whether they would like someone with them during the consultation. Overwhelming the patient with leaflets is no substitute for talking to the patient about their hopes and fears.
Check the patient’s decision is properly informed. If in doubt, you could ask them to confirm what they have understood or return to the subject at the next opportunity.
4. Don’t leave consent until last minute. For minor surgical procedures, try to avoid leaving the consent discussion until the patient is in the room and the doctor or nurse practitioner is standing by. This might lead to suggestions that consent was given under pressure or without the opportunity to reflect.
5. Record your discussions. Make a detailed record of the discussion including information provided to the patient about the risks involved in proposed treatment, any concerns they have raised and your response.
Dr Beverley Ward is a medicolegal advisor at the Medical Defence Union