Obtaining informed and valid consent from patients for investigations or treatment is a fundamental principle of medicine. Indeed, the foundation of the consenting process has always been based on doctors working in partnership with their patients and involving them in the decision-making process about their care.
However, GPs should be mindful of a recent shift in the consenting process towards a more patient-specific approach that is tailored to the needs of each individual.
Change in focus
The change in focus follows on from the landmark ruling in the Supreme Court case of Montgomery v Lanarkshire Health Board in 2015 which crystallised the law regarding informed consent and the amount of information a patient is entitled to receive before making a treatment decision.
Where past court judgments in the UK have tended to rely on a ‘professional standard’, there has been a move to adopt a ‘reasonable patient standard’, with the medical profession no longer solely responsible for determining which risks are material.
The Montgomery case is important to all doctors involved in consent discussions with patients as it sets out what is expected in terms of information disclosure. Crucially, what a patient regards as significant may not accord with their doctor’s view. Therefore, a doctor is unable to determine, unilaterally, what is reasonable to disclose to their patient.
The Royal College of Surgeons has already issued new guidance which states that doctors must focus on the specific needs of the patient by explaining treatment options and taking reasonable steps to ensure that they are aware of all material risks.
Don’t make assumptions
GPs shouldn’t make assumptions about what a patient may want or need to know. Instead, they should seek to make a shared care decision with their patients, discussing every issue that is relevant for that individual patient.
A shared care decision is one that recognises the importance of patient autonomy and includes a full and frank discussion of risk and benefits with each patient. As a consequence it is more likely to ensure a positive patient experience and outcome.
MDDUS has encountered cases in which there was a failure to effectively communicate the risks and benefits of a procedure to the patient. It is not uncommon for patients in such cases to comment that, had they fully understood the implications of the proposed treatment, they would not have agreed to it.
We have also seen cases arising from a lack of detailed discussion between doctors and their patients regarding alternative treatment options and potential outcomes.
This lack of communication and failure to involve the patient in choices regarding their care can result in a breakdown in communication and ultimately erode the doctor-patient relationship.
Provide sufficient information
As part of a patient-centric consenting process, patients should be given sufficient information regarding diagnosis, prognosis, need for the procedure, potential material risks and benefits, likelihood of success and potential follow-up treatment as well as the alternative treatment options – including doing nothing.
There are of course some exceptions, such as providing life-sustaining treatment in an emergency.
Some patients struggle to understand basic information so GPs should use clear, simple and consistent language when discussing risks and treatment options, avoiding complex language or medical jargon.
If a patient appears agreeable it does not necessarily mean they understand all the information they are being given. Furthermore, a patient’s ability to process and retain information can be affected by factors such as anxiety, pain or the effects of clinical medication.
GPs should encourage two-way communication and observe any verbal and non-verbal cues from their patient. It’s important to foster an open atmosphere that encourages questions from patients.
However, patients do not have to ask specific questions – indeed a lay person may not know what questions to ask – but if they are expressing some concerns the questions which would naturally flow from those concerns must be explored and answered fully.
As always, GPs should keep clear, relevant and unambiguous notes of consent discussions and carefully check any proformas or standard information leaflets that are in use.
The GMC’s Good medical practice says doctors should respect patients’ right to reach decisions with you about their treatment and care, while their guidance Consent: patients and doctors making decisions together states doctors should ‘share with patients the information they want or need in order to make decisions’ and ‘maximise patients’ opportunities, and their ability, to make decisions for themselves.’