New Doctor - Medical Protection Society

6
MEDICOETHICAL FEATURE
NEW DOCTOR | VOLUME 5 | ISSUE 2 | 2012 | UNITED KINGDOM www.mps.org.uk
Essential learning:
consent and capacity
Consent is an individualised process based on
respect – it is more than a signature on a form,
says medicolegal adviser Dr Gordon McDavid
Dr U is in his first week as an
F2 in ENT. A nurse asks him
to consent a patient going
to theatre, she cannot locate the
consent form in the patient’s notes.
She says that the consultant will get
very cross if the patient turns up
to theatre without the appropriate
documentation, especially as the
patient’s operation has already
been cancelled once, and it would
be terrible if it happened again. Dr
U appears unsure, so the nurse
adds that Dr U would only have to
take consent for a tonsillectomy,
which “isn’t rocket science”.
Dr U is in a dilemma that many
foundation doctors will be familiar
with. The nurse is asking Dr U to
work outside his competence, as
he has not taken consent from a
patient for a tonsillectomy before.
So how should Dr U handle this
situation? MPS advice is that
Dr U should seek advice from a
senior colleague before obtaining
consent so that the operation can
go ahead as planned.
Trust, confidence and good
communication are fundamental
to a successful doctor–patient
partnership and providing
healthcare involves decisions,
which should be made with your
patient. Failure to obtain consent
properly can lead to problems
including legal or disciplinary action
against you, or rarely criminal
prosecution for battery (contact
with an individual without consent.)
The foundation programme
curriculum stipulates that you should
be familiar with the GMC’s guidance
document Consent: Doctors and
Patients Making Decisions Together,
and be able to obtain consent in
line with this guidance. By the end
of your FY2, you should be able
to describe the principles of valid
consent and demonstrate this
understanding in your practice. You
should also be able to undertake a
capacity assessment.
What is consent?
Consent should be a discussion
with your patient that assists them
to reach a decision. You should
facilitate this process by providing
the information they need in an
appropriate format.
Whilst consent must be obtained
prior to providing healthcare,
often consent may be implied,
eg, when a doctor requests a
blood sample, the patient holds
out their arm thus implying their
consent to the procedure.
In an emergency situation where
a patient cannot provide consent,
(eg, the patient is unconscious) a
doctor may provide treatment to
safeguard the patient’s life or health,
acting in the patient’s best interests.
Discuss risks
It is important to warn patients
of the risks of treatment and
document that you have done so.
Clear documentation is necessary
to provide evidence of this.
In the 2004 case of Chester v
Afshar (2004), the surgeon failed to
document his discussions with the
patient regarding the possibility of
cauda equina syndrome following
discectomy for lower back pain
and it could not be proven that
Miss Chester had been warned
of all the risks. 1 Miss Chester
successfully argued that if she had
been warned, she would have
taken the time to think about it and
had surgery on another day, thus
avoiding the rare complication.
The GMC’s consent guidance
recommends that patients should
be given information in a balanced
and tailored way. 2 Patients should
be told of any possible significant
adverse outcome and of any less
serious side effects or complications
if they occur frequently.
Document, document,
document
While many patients wish to be
fully informed and involved in their
healthcare, some patients may not
want to know all the details about
treatments and their attendant
risks and benefits, making it difficult
to secure their valid consent.
Consent should be a discussion with
your patient that assists them to reach
a decision. You should facilitate this
process by providing the information
they need in an appropriate format
If a patient does not want to
discuss their condition or the
treatment in detail, you should
respect their wishes as far as
possible, but the GMC says: “You
must still give them the information
they need in order to give their
consent”. Safeguard yourself by
recording the fact that the patient
had declined this information.
Refusing consent
If patients are competent, they are
entitled to refuse consent, no matter
how illogical this may seem. If this
happens, it is a good idea to explain
to them the possible consequences
of their decision. Such discussion
is not with the intention of changing
their mind or coercing the patient,
but to clarify the situation. You
should listen to patients and respect
their views, even if you do not agree.
Check their understanding of
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