Traditionally clinical practice in the NHS has considered that it is up to doctors to decide what risks to communicate to patients. Recent case law has changed and doctors are now obliged to ensure that patients are aware of any and all risks that an individual patient might consider significant.
The Royal College of Surgeons has published new guidance for surgeons that aims to help doctors and surgeons understand the shift in the law and its implications, as well as give them the tools to assist in improving their practice.
Doctors must ensure patients are aware of any and all risks that an individual patient, not a doctor, might consider significant. In other words doctors can no longer be the sole arbiter of determining what risks are material to the patient.
For example, possible loss of sensation in the hand following bypass surgery may be a minor risk to one patient in comparison to the benefit of increased life expectancy, but a very important risk to another, and therefore material, depending on the patient’s lifestyle choices e.g. a pianist. Surgeons are now required to get to know their patient sufficiently to understand their patients’ views and values and support them in making decisions about their treatment.
Mr Leslie Hamilton, a Royal College of Surgeons Council Member, said:
“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 key principles it specifies are:
• The aim of the discussion about consent is to give the patient the information they need to make a decision about what treatment or procedure (if any) they want.
• The discussion has to be tailored to the individual patient. This requires time to get to know the patient well enough to understand their views and values.
• All reasonable treatment options, along with their implications, should be explained to the patient.
• Material risks for each option should be discussed with the patient. The test of materiality is twofold: 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 likely attach significance to it.
• Consent should be written and recorded. If the patient has made a decision, the consent form should be signed at the end of the discussion. The signed form is part of the evidence that the discussion has taken place, but provides no meaningful information about the quality of the discussion.
• In addition to the consent form, a record of the discussion (including contemporaneous documentation of the key points of the discussion, hard copies or web links of any further information provided to the patient, and the patient’s decision) should be included in the patient’s case notes. This is important even if the patient chooses not to undergo treatment.
You can read the full guide on the Royal College of Surgeons website.