Wednesday, 27 May 2015

Bolt Burdon Kemp: To Consent Is Not to Concede

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Consent seems like a simple concept: A doctor lets you know which procedure you’re having, they explain the risks and, if you agree to have the medical intervention, you say ‘yes’. Job done. 

Despite it sounding like a straightforward process, there are a lot of myths and misunderstandings surrounding the issue of consent. 

In today’s blog we will bust some of those myths, explain your rights and describe the process that your doctor must take you through if they want to attain your informed consent in the eyes of the law. 
The misunderstandings: 

1. Myth: The biggest misunderstanding (and for us lawyers, the most alarming) is that the patient, by signing the consent form, has waived their right to claim damages for those injuries listed as ‘risks’ in the event they occur. 

Bust: To illustrate this point, we have had first-hand experience of people believing that there can be no claim for paraplegia caused by negligent surgery, because ‘paralysis’ was listed on the consent form. This is wrong.

The risks on a consent form are there to inform the patient of the known side effects of a procedure. If you sign the consent form, you accept that you may experience some or all of these injuries, but only if they arise naturally. You do not agree to sustaining these injuries if they are caused by the mistakes or omissions of the doctor or medical team. 

It is worth clarifying this point further by saying that the law does not allow a doctor or medical professional (or anyone for that matter) to exclude or restrict their liability for death or personal injury, resulting from negligence, by giving notice of this possible outcome.

2. Myth: The doctor knows best; he’s in charge.

Bust: Gone are the days when it was believed that doctors were infallible intellectual titans and their patients incapable of understanding or unable to make informed decisions.  A lot has changed, for example:

There is now a recognised right to self-determination, protected by Article 8 of the European Convention on Human Rights along with a number of other pieces of legislation;
The General Medical Council (GMC) guidelines impose a duty on doctors to “work in partnership with patients. Listen to, and respond to, their concerns and preferences [...] Respect patients’ right to reach decisions with you about their treatment and care”;

Medical paternalism is no more. Patients are now (rightly) considered as adults and equals – they can understand the treatment and the risks; they are able to make their own decisions and accept responsibility for their actions.
3. Myth: The doctor explained the risks to the patient. The patient agreed to those risks and so they gave their informed consent.

Bust: Not true.  Whilst it is right to say that a doctor should advise the patient of the risks, they must also discuss the anticipated benefits and the reasonable alternative treatments. Only then can the doctor be said to have fully explained the procedure and only then can a patient give their informed consent. Just explaining the risks of the proposed procedure is not enough

4. Myth: Doctors in the UK are too busy to have long conversations about risks and benefits with each and every patient. 

Bust: This is simply wrong. The GMC have, for a long time, required a dialogue between doctor and patient. Recent legal decisions now impose an obligation for doctors to pause and engage in a discussion about consent. This may be unpopular with some doctors who are in a hurry or don’t like communicating, but they will have to adjust.  Many other jurisdictions around the world have imposed these obligations and it works there.  Our health system must adapt and a patient should never feel rushed into a decision or compelled to make a decision without all of the information.

5. Myth: The science involved in a treatment is very complicated and the patient wouldn’t understand. In such circumstances, it is right for the doctor not to try to explain the treatment and to just do what they think is best for the patient.

Bust: Yes, you guessed it – this is wrong.
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We live in an age when it is very easy for anyone to obtain information from the internet, support groups and other resources. Moreover we, as the patients, are now expected to read and understand more than ever before: pharmaceuticals have important information sheets for us to read and we are given countless information leaflets about the illness that we are suffering from, or the treatment we are about to receive.

As discussed in Myth 2, it would be wrong to propose that the doctor-patient relationship is the same as it was 100 (or even 50) years ago - patients are now much more able to access and understand medical information than ever before and the power in the relationship has shifted accordingly. 

6. Myth: The doctor did explain everything to the patient and the patient consented without understanding the information. That’s the patient’s problem.

Bust: Wrong! It is the doctor’s problem. As mentioned in Myth 3, the doctor is under a duty to ensure the patient has understood the seriousness of the condition, benefits of the treatment, risks and alternatives. In order for the doctor to be satisfied that they have fulfilled this duty, the information must have been comprehensible to the patient. It must be in plain and simple English, describing concepts that the patient will be able to grasp. This legal obligation cannot be fulfilled by the doctor blitzing the patient with complicated information, facts, figures and science. 

7. Myth: A doctor must always provide the necessary information.

Bust: Despite the big shift in the doctor-patient relationship, there are still some instances where a doctor can withhold some information. The obvious scenario is in emergencies, or when the patient is unconscious. However, the law does also allow what is called the “therapeutic exception” where they may withhold disclosure of certain information if they reasonably consider that it would be detrimental to the patient’s health. However, judges have been very clear to point out that this is a very limited exception and should not be abused – it is not there to allow the undermining of the principles of informed consent.

8. Myth: In light of all of the above, a patient who doesn’t want to hear the risks of, or alternatives to, a treatment cannot consent to it.

Bust: That can’t be right. After all, patients are now considered to be adults, and adults are entitled to consent to something whilst refusing important information, if they so wish. Where a patient doesn’t want to hear the risks (whether out of fear or disinterest) a doctor is not obliged to tell them. However, the doctor must make a reasonable judgment call as to whether the patient really doesn’t want to know the information. After all, it may simply be the case that the patient is reluctant to listen because the doctor is not effectively explaining what they need to know.

9. Myth: The doctor spent many hours with the patient, discussing each and every one of the risks of the treatment, as well as the benefits and alternatives. They have definitely met their obligations.

Bust: Swing and a miss. The law doesn’t ask the doctor to explain every risk; it asks them to advise of the material risks. This, in turn, doesn’t simply mean that the doctor just needs to mention the biggest and most likely risks. It isn’t a question of percentages. The doctor must exercise their judgment and consider what is material to that specific patient. What is material to each patient will be different: some will care more about the type of risk, others the effect, others the benefit sought and so on.

Equally, when a doctor does advise about risks, the information must be correct. This sounds obvious, but we have seen examples where doctors have overstated some risks and understated others. 

Misinformation can lead to patients consented to procedures they wouldn’t have otherwise, or perhaps refusing treatments that they should have consented to! Both of these outcomes might lead to avoidable harm being caused.

10. Myth: A patient must always sign a consent form.

Bust: This is not entirely true. For lesser procedures or tests, such as for stitches or a blood test, a consent form isn’t strictly necessary – a patient can consent verbally or by their actions e.g. by holding their arm out towards the needle. 

However, for more significant procedures where there are higher risks or where serious harm could result, written consent is very important. In most cases it is not a legal requirement, but it is good practice. 

The consent form should record all of the key elements of the information discussed, any specific requests by the patient, any information given to the patient and the details of the decisions that were made.  A form without any evidence of such discussions will not become valid consent just because the patient has put their signature at the end of the form.

It is good practice that consent is obtained well in advance of the procedure so that the patient has time to ask questions and the clinician has time to provide enough information. If consent is left until just before the procedure, when the patient may be feeling particularly scared and vulnerable, there may be real doubt as to its validity. 

Bruno Gil works with Raquel Siganporia in the Spinal Injury team at Bolt Burdon Kemp. 

If you or a loved one have suffered an injury as a result of someone else’s negligence or you are concerned about the treatment you have received, contact us free of charge and in confidence on 020 7288 4844 or at for specialist legal advice. Alternatively, you can complete this form and one of the solicitors in the Spinal Injury team will contact you. You can find out more about the team here.

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