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What are the Latest Guidelines on Patient Consent?

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A while ago we published a blog about The New Rules of Consent, in which we detailed the changing legal landscape and how it pertains to patient consent. In a nutshell, healthcare provision has progressed to a patient-centric approach. This places more emphasis on delivering the care the patient wants, rather than the doctor administering what he or she thinks best. In other words, the test for consent from what a ‘reasonable doctor’ would consider material to what a ‘reasonable patient’ would.

Not solely the patient’s decision

The care given or the course of treatment administered, of course, is not left to the patient alone. It now becomes a joint decision, with the doctor providing all the necessary information for the patient to make an informed decision. When discussing diagnosis, prognosis, and treatment options, the doctor should:

- Listen to the patient’s views about their health

- Share all information needed or requested

- Maximise the patient’s ability and opportunity to make their own decision

- Respect the patient’s decision

- The strategy of receiving consent therefore becomes a collaboration; a partnership where the patient becomes the major decision maker.

Remember that patients are individuals

Every patient is an individual. Though there is no single approach to creating an effective doctor-patient partnership – people react differently to the same circumstances – the basic partnership strategy requires openness, honesty, and good communication. In addition, the doctor will:

- Make an assessment of the patient’s condition, taking into account the patient’s medical history, views, experience and knowledge.

- Infuse the conversation with his or her specialist knowledge and experience.

- Enable the patient to weigh up the pros and cons of different treatment options.

- Discuss issues of any inappropriate treatment that the patient requests.

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What else should be discussed?

Specifically, for the patient to be considered in a position to make an informed decision, the doctor should also discuss the side effects of treatment and any potential complications or other risks.

If treatment might require the intervention of other medical staff, doctors, or specialists, this should also be highlighted. There may be objections that need to be discussed.

Particularly where treatment or a number of separate treatments is to be provided in stages, the patient must be made aware of these. Also, if there is uncertainty about the course of treatment and follow-up procedures until treatment has been started, this should be explained prior to consent being given.

Always ensure that decisions are voluntary

Perhaps one of the key guidelines is the need to ensure that patient decisions are voluntarily made. This means that the doctor should have a conversation with the patient, which includes a discussion about possible outside influences:

- Employers, friends, and relatives can pressure patients into a course of action that they don’t really wish to take.

- Residents of care homes, people detained by police or immigration services, and prisoners may all feel coerced.

If you are certain that the decision is the patient’s, and that the patient has made it with the benefit of all the facts available, then consent can be accepted as being compliant with current legislation and guidelines.

What if the patient is unable to make his or her own decision?

There may be occasions when a doctor requires consent but the patient is unable to make a decision for themselves. In such circumstances, the doctor will need to work with those that are close to the patient (friends and family, for example) as well as other healthcare workers. However, the doctor must still take into consideration the views of the patient, and must follow the law on decision-making when a patient lacks capacity.

Ensure that your records are kept in order

The doctor should record all conversations with the patient that pertain to consent. These should be kept with the patient’s medical records, and may include a consent form. The key elements of the discussion should be recorded, including:

- Any specific requests by the patient

- Written, visual, or audio information given to the patient

- Details of decisions made

How do you assess that consent is valid?

There are three tests that the consent must pass to be deemed as valid:

Voluntary – the decision must be the patient’s alone and not influenced by external pressure.

Informed – the patient must be in possession of all material facts about the treatment, as well as being allowed to consider reasonable alternatives. This information should include a discussion of the consequences of not proceeding with the treatment.

Capacity – the patient must be capable of giving consent and making an informed decision.

Additional resource:

Update on the law on consent – article from Daniel K Sokol, practising barrister and medical ethicist for the British Medical Journal.

Consent tool kit - from the British Medical Association

When consent isn’t needed - from NHS Choices

GMA Consent Guidance full text

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