Posted: 28/03/2023
We all know and appreciate the importance of a person’s right to provide their informed consent and agreement in many aspects of their lives, particularly in financial and personal affairs. Crucially, it also applies when it comes to making decisions on our health.
Most of us will have experienced a time where we have sought advice from a medical professional, whether that be from a GP, an A&E doctor or nurse, or even a doctor with a specialist expertise of which there are many: dermatologists, neurologists, orthopaedics and so on. Our (reasonable) expectation when we seek advice from a health professional is that we will be informed of the likely causes of the problem we are presenting with, and a discussion should be had in terms of whether any investigation is necessary to confirm or rule out a potential cause.
Once a diagnosis is made, a discussion will then be held as to what the options for treatment are. As most patients will not have any specialist medical training to fully understand the scope of the options available to them, they are reliant on the consulting medical health professional to provide advice. This enables them to consider the options and make an informed decision on how to proceed in the management of the health condition or injury that is of concern.
Often, there will be multiple options for treatment and to assist with making a decision that is right for that individual, it is important that each option is discussed, along with the relative risks and benefits. It is only with the benefit of that discussion that a patient can properly weigh up the ‘pros and cons’ of their treatment options, so that they can provide their informed consent on their future care.
So, what are the obligations of a health professional when consulting a patient for the purposes of obtaining their informed consent? Well, there is both a regulatory and legal requirement on health professionals.
Firstly, the General Medical Council (GMC) is the regulatory body for all registered doctors in the UK. There are many other regulatory bodies that govern standards in other medical disciplines, such as the Nursing and Midwifery Council, which, as the title suggests, governs practising nurses and midwives. The purpose of these regulatory bodies is to set standards by defining professional values, knowledge, skill and behaviours across medical professionals in the UK.
Within its guidance on the importance of consent, the GMC advises that ‘shared decision making and consent are fundamental to good medical practice’ and that ‘serious harm can result if patients are not listened to, or if they are not given the information they need - and time and support to understand it - so they can make informed decisions about their care’. It is therefore recognised that the failure to obtain informed consent can result in avoidable harm being caused to a patient and, therefore, the importance of the consenting process cannot be stressed enough.
The GMC provides clear guidance on the obligations of doctors when obtaining consent which includes:
The GMC’s guidance also contains seven principles of decision making and consent, of which the first on the list states: “All patients have the right to be involved in decisions about their treatment and care and be supported to make informed decisions if they are able.”
In addition to the regulatory obligations on doctors, there is also a legal obligation on a doctor to take reasonable care to ensure that the patient is aware of any ‘material risks’ involved in any recommended treatment, and to advise of any reasonable alternative or variant treatments. The courts define a ‘material risk’ on the basis of whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is, or should reasonably be, aware that the particular patient would be likely to attach significance to it.
In essence therefore, the significance that one person may attach to a particular risk may be different to another – and so the process should not be regarded as a ‘one size fits all’. For example, if there is a risk that a particular form of treatment could impact on a patient’s fertility, a person wanting to start or expand on their family may attach more significance to that risk than a person who, for example, is not of childbearing age. Sometimes, whilst treatment may ultimately be necessary, quite often it can be delayed with no or little risk to a patient, and this element should also form as part of the discussions.
Naomi Holland, senior associate at Penningtons Manches Cooper, comments: “We have represented and secured successful outcomes for many clients who were sadly not appropriately informed of their treatment options and the relative risks and benefits of each, and thus did not provide their informed consent to the treatment that they ultimately underwent. The concerns raised in our clients’ cases range from concerns of being deprived of the option of undergoing a less invasive form of surgery (ie keyhole surgery) which carries less risks and several benefits in comparison to open surgery, to a case where a client was informed of very limited options for treatment when there may have been several more available.
“There have even been cases where imbalanced discussions have taken place about the need to undergo an invasive procedure, when, ultimately, treatment may not have been needed in that person’s individual circumstances at all, or at that time. In many cases the harm caused has been extensive and life-changing, which can be incredibly distressing for our clients and their families.
“Another significant issue that we often come across in the consenting process is the timing in which the discussions are held about the risks and benefits of a proposed treatment. In many cases, these discussions are first held on the day of treatment/surgery and when a patient is first asked to sign a consent form, which is a document confirming their agreement to treatment. The concern with having this discussion for the first time on the day of treatment is that it may not give the patient appropriate time to reflect on the new information provided, and may happen when a patient is under some duress to proceed with treatment. The circumstances will cast doubt over the validity of the person’s ability to provide informed consent.
“It is also important to note that the process of informed consent does not just apply at the initial consultation(s), but there is an ongoing obligation on health professionals when the treatment is longer term – for example, in managing certain cancers or skin conditions. This is because, during the course of treatment/management, there may be new information/events that arise that could impact the patient in terms of risk, or new treatments may become available.”
Penningtons Manches Cooper has a specialist team of surgical negligence solicitors who deal with the full spectrum of surgery related medical negligence claims. If you think you may have a surgical claim, even if the type of claim has not been mentioned above, please do not hesitate to get in touch with a member of the team for an initial discussion.
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