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Practice training 101: The New Rules of Consent

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Not before time, the GMC guidance on consent has been accepted as proper practice by the law courts. A recent legal case has effectively changed the law on consent, and practice managers should ensure that all staff and doctors are aware of the implications for the practice and doctors. Here we look at how the question of consent used to be treated and how it must be treated now.

The doctor always knew best

Consent was always informed by medical opinion. Effectively this meant that the doctor could give treatment without explaining to the patient exactly what was going to happen and any risks involved, if he or she felt it was necessary and that a body of medical opinion would support the consenting process. This was called the ‘Bolam Test’.

Of course, a signature would still be needed (except in extreme life-threatening cases), but often the consent signature was not accompanied by explanation or understanding by the patient or the patient’s signatory. If a group of doctors felt it unhelpful or unnecessary to tell the patient about the risks, it wasn’t deemed negligent not to do so.

What has changed?

In the modern, connected, and better-informed world, healthcare provision has moved with the times and now puts more reliance on what the patient wants. This patient centric approach, putting the power of treatment choice in the hands of the patient, moves the test for consent from what a ‘reasonable doctor’ would consider material to what a ‘reasonable patient’ would.

When seeking consent, the following must be discussed with the patient:

- All risks that would be considered significant by a reasonable patient (called the objective test)

- All risks that a reasonable patient might consider significant (called the subjective test)

Objective risks might include a discussion of the most common complications of a procedure, while the subjective test might include the possibility of loss of sight in an eye when the patient has already severely impaired sight in the other.

Clearly, these tests mean that the doctor must:

- Know the risks of the procedure (objective)

- Know his or her patient (subjective)

What does this change mean in practice?

This change in legal approach has been tested in court. Last year’s case of Montgomeryvs Lanarkshire Health Board found that it was wrong that mum-to-be Nadine Montgomery was not told of the risks to her unborn child during child birth.

Nadine is a diabetes sufferer and of a small build. She was never told that this combination often led to larger than normal babies. Nor was she warned that there would be around a 10% risk of her child suffering shoulder dystocia during birth, and that this could lead to her baby suffering severe disabilities.

The case was heard in the Supreme Court, and while the outcome has clearly shifted the consent process to the GMC guided model, the court stopped short of providing guidance as to how to obtain consent. However, the following actions would be prudent:

- Understand that a consent signature does not constitute understanding and acceptance of risks

- There must be a conversation with the patient (or signatory) about patient needs and the risks (and benefits) of the proposed treatment

- There should also be a discussion of alternative treatments and the option of no treatment, and this discussion should include risks and benefits

- The obtaining of consent should not be delegated to another, unless this is unavoidable

- Notes of all conversations with regards to consent should be kept in the patient’s medical records

Of course, there may be exceptional circumstances which preclude this process of consent. For example, if the disclosure of risks would cause harm to the patient or the patient has said that they don’t want to be told of the risks (and, of course, the need to provide treatment when life is threatened).

In summary, whenever obtaining consent, the mindset must now be that the doctor does not know best but rather the patient should be informed to make their own decisions.

More information:

GMC Ethical Consent

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