LEGAL ISSUES
judgment in the Montgomery case, the perception within established clinical practice, as well as a large body of case law, followed a more paternalistic approach. This was reflected in the Bolam principle, which saw the judgement of medical experts as the main criterion for assessing reasonable care in negligence cases and for deciding what risks should be communicated to the patient for a chosen treatment. The RCS is also concerned that many
NHS Trusts are not allowing enough time for consent to be gained sufficiently during consultations. Mr Hamilton added: “The NHS is under huge pressure and seeing more patients than ever. It’s not hard to see how in many hospitals gaining a patient’s consent has become a paper tick-box exercise, hurriedly done in the minutes before a patient is wheeled into theatre for their procedure. Operating lists and consultation clinics are packed leaving little time for these important consent discussions. “Patients must be given enough time to make an informed decision about their treatment and hospitals are going to have to give serious thought to how they plan in time for these discussions.” Consent: Supported Decision-Making – A Guide to Good Practice explains the change in case law and the impact this has on gaining consent from patients. It offers a set of principles to help surgeons support patients to make decisions about their care and gives a step-by-step overview of how the consent process should happen. The guidance states that consent to treatment must be confirmed in writing and must be given voluntarily by a person with the capacity to make the decision in question, based on appropriate information, which is understood. If any of these factors are
missing, the patient is not considered to have given permission to proceed to treatment. The RCS further advises that different options for treatment, including the option of no treatment, should be presented side by side and the benefits and material risks should be given objectively. On the issue of assessing a person’s capacity to make a decision, the guidance refers to the Mental Capacity Act 2005, which sets out a two-stage test of capacity, consisting of the following questions: 1. Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It does not matter whether the impairment or disturbance is temporary or permanent.)
2. If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
Furthermore, surgeons should consider whether the patient is able to: l Understand information relevant to the decision.
l Retain the information long enough to make a decision.
l Use or weigh up that information as part of the decision-making process.
l Communicate a decision by any means e.g. sign-language or talking.
In addition, patients should be treated as ‘individuals’; surgeons must not assume that ‘a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), their beliefs, their apparent inability to communicate, or the fact that they make a decision with which the surgeon disagrees. On occasions,
patients with mental capacity may make decisions that may have negative implications for their health. Even in cases where patients choose to refuse treatment and this path is potentially dangerous or fatal, surgeons must respect the patient’s decision. (An example of this can be seen in the RCS guidance: Caring for Patients Who Refuse Blood – A Guide to Good Practice, RCS, 2016).
The guidance on consent includes patients in medical emergencies, such as those who are admitted to hospital unconscious. In such cases, it is inappropriate to delay treatment to try to facilitate the patient’s autonomous decisions. Healthcare staff should act in the patient’s best interests and attempt to communicate with them to keep them informed wherever possible.
The guidance emphasises that surgeons must ensure that the patient is provided with the information they need to make an informed decision about treatment and, to support discussion on issues of consent, it may be necessary to send information to the patient in advance. The RCS advises that surgeons should provide information about: l The patient’s diagnosis and prognosis. l The right of the patient to refuse treatment and make their own decisions about their care.
l Alternative options for treatment, including non-operative care and no treatment.
l Advice on lifestyle that may moderate the disease process.
l The purpose and expected benefit of the treatment.
l The nature of the treatment (what it involves).
l The likelihood of success. l The clinicians involved in their treatment. l Potential follow-up treatment. l The material risks inherent in the procedure and in the alternative options discussed.
l For private patients, costs of treatment and potential future costs in the event of complications.
Surgeons should make patients aware of national guidelines on treatment choices, such as NICE (National Institute for Health and Care Excellence) and SIGN (Scottish Intercollegiate Guidelines Network) guidelines. If the recommended treatment is not in keeping with current guidelines, the surgeon must explain their reason for not following current standard guidelines. When advising patients which treatment will be the most conducive to the good health of the patient, it is important that the advice given is impartial and factual. Surgeons must not allow their personal views and preferences to have an impact on the description or emphasis given for each of the options. However, if the patient then asks the surgeon for their view, it is reasonable to give an opinion as long as it does not push the patient into a decision that would not have been their choice.
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