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Consent is an important topic within healthcare. In Montgomery v Lanarkshire Health Board  UKSC 11 the Courts made clear that patient consent must be informed. In other words:
“The law on consent has progressed from doctor focused to patient focused. The practice of medicine has moved significantly away from the idea of the paternalistic doctor who tells their patient what to do, even if this was thought to be in the patient’s best interests. A patient is autonomous and should be supported to make decisions about their own health and to take ownership of the fact that sometimes success is uncertain and complications can occur despite the best treatment".
The GMC has recently published new guidance to help doctors understand how to meet their regulatory obligations regarding patient consent and decision making. This came into force on 9 November 2020 and replaces the ‘Consent: patients and doctors making decisions together’ guidance from 2008, which needed an overhaul.
While the law relating to patient decision-making varies across the United Kingdom (UK), the new guidance is intended to be consistent with the law in all four countries.
The new guidance reinforces consent as a fundamental legal and ethical principle. Doctors must be satisfied that they have a patient’s consent or other valid authority before providing treatment or care. The guidance sets out a framework to assist doctors with making ethical decisions that are within the law.
The guidance applies to decisions about mental and physical health and applies regardless of the setting in which the interaction with the patient takes place, including remote consultations.
Proportionality is highlighted within the guidance, and further that a doctor must exercise their judgement on how to apply the guidance in the specific circumstances of each case. Paragraph 5 sets out a useful list of factors that will assist doctors in deciding how to apply the guidance. For example, a doctor should take into account the nature and severity of the patient’s condition and how quickly a decision needs to be made.
Paragraph 7 also sets out a useful list of the minimum consent requirements of a doctor during quick, non-invasive examinations.
The new guidance sets out seven key principles that underpin decision making and consent. These provide a useful summary for doctors wanting to gain a concise understanding of their obligations in this area. The principles are set out at page 7 of the guidance, but can be summarised as follows:
Principles 1 to 4 introduce the key concepts in this area and emphasise that meaningful dialogue between a doctor and patient is crucial to decision making and consent. Paragraph 8 expands upon this and makes it clear that a doctor should find out what is important to a patient in order to identify the information they will need to make the decision. Paragraphs 16 to 20 explain how a doctor can find out what is important to a patient. For example, paragraphs 18 and 19 require a doctor to explore the patient’s needs and values by asking questions that encourage the patient to express their priorities.
It is clear under the new guidance that there is now a greater focus on the patient understanding their role in the decision making process to ensure that doctors do not make assumptions about what the patient needs.
The guidance uses the term ‘relevant information’ and emphasises that this is what doctors should provide patients with. Paragraphs 10 to 13 shed light on what might constitute relevant information. For example; the patient’s diagnosis, prognosis and their options for treatment.
Paragraph 27 also emphasises that doctors should give patients relevant information in a way they can understand and retain.
Paragraphs 25 and 26 will assist doctors where the available benefits of an option are unclear or if they are uncertain about the clinical effect of a particular treatment or diagnosis. The guidance is explicit that doctors must be clear about the limits of their knowledge with the patient.
Paragraphs 32 to 39 provide new guidance on decision making when it is foreseeable that a patient will need to make a decision in the future but may find this difficult because, for example, they may be in pain or their insight may be reduced by their condition. The guidance asks doctors to anticipate these circumstances and discuss them in advance with patients, and then on an on-going basis.
Paragraph 37 and 38 provide useful information on a doctor’s record keeping requirements in this area. Doctors must record a summary of their discussion with the patient about their future care and any decisions they make. If possible, this should be done while the patient has capacity to review and understand it.
The new guidance is clear that patients who cannot make decisions freely will not be able to consent. Paragraphs 69 to 75 ask doctors to be aware of the possibility that patients may be influenced by others. Paragraph 71 gives examples of situations in which patients may be particularly vulnerable to pressure. The guidance is unequivocal that a doctor must follow local safeguarding procedures if they suspect a patient’s rights have been abused or denied.
The guidance is a welcomed update to the 2008 edition, as medicine and practice has evolved quite significantly since its implementation, and doctors need to clear guidance to assist them in this area.
Our team are specialists in advising doctors facing an investigation by the GMC having worked in health care regulation for over 40 years. Should you need assistance, do not hesitate to get in touch.
Shannett is a Partner in the Regulatory Team providing regulatory advice predominantly in the health and social care sector. She is also a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act.
Imogen is a trainee solicitor in Kingsley Napley’s Regulatory team, where she assists with investigating and preparing fitness to practice cases relating to professional misconduct, ill-health and lack of competence.
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