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Improving Patient Consent Records

Improving Patient Consent Records

Stewart Duffy  
Radcliffes LeBrasseur


The SCP has recently published a revised Standard 2 – Patient Consent as part of the Clinical Standards of Podiatric Practice - for its members. As the solicitors who defend the members’ medical malpractice claims, we helped to prepare the revised Standard. Having practised as a clinician for a decade I now defend healthcare professionals as a lawyer when their practice is questioned. I understand how new guidance can be perceived as adding unnecessarily to the existing demands of clinical work, but the revised Standard on Consent is evolutionary not revolutionary. 

Consent is a keystone of the professional relationship between patients and healthcare professionals. Patients are generally free to choose whether, how and when they will be treated. Obtaining a patient’s informed consent is an ethical, professional and legal pre-requisite to providing treatment. A failure to obtain informed consent could lead to criminal prosecution, civil claims or professional disciplinary proceedings or a combination of these. It is an aspect of patient autonomy that patients are expected to take responsibility for their own decision making, but only where those decisions have been properly informed. It is the treating healthcare professional’s duty to facilitate a properly informed decision by communicating the relevant information in a way that is clear and understandable. 

When treatment fails to achieve the desired effect, or results in an outcome that the patient finds unsatisfactory, the question of whether they provided informed consent to treatment may be a focus of dispute. As a lawyer advising a practitioner in those circumstances, I would want the fullest possible information about the nature and content of the discussions between the practitioner and the patient prior to treatment, any written information that was supplied to the patient and any other decision aids that were used, such as videos or models. Practitioners should bear in mind that the dispute may arise several years after treatment. Without the assistance of detailed and contemporaneous notes it is likely to be a struggle for the practitioner to be confident about the details of the information provided. When carrying out procedures that require signed informed consent, a one-line entry in the clinical record stating ‘consent obtained’ or ‘risks and benefits explained. Patient consents’ will be of little assistance. Such an entry simply invites further questions: What risks? Which benefits?

Whilst practitioners will often point to their usual practice, that may be of limited value. The very nature of informed consent is that it is patient specific. In providing information to a patient you must take account of their particular circumstances and goals.

It is a mistake to think that having the patient’s signature on a written consent form is the beginning and end of the issue. A signed consent form is just one of the pieces of evidence that may be available. The courts recognise that on occasion healthcare professionals obtain patients’ signatures on consent forms without really establishing that the patient has grasped the relevant information. Worse still, healthcare professionals sometimes obtain patients’ signatures on consent forms that are simply inaccurate; they describe the wrong treatment or refer to the wrong limb or to irrelevant risks. A patient’s signature on such a form is often more supportive of the patient’s case that they did not provide informed consent, than it is of the practitioner’s counter argument. 

I believe it is generally the case that practitioners have appropriate discussions with patients and provide relevant information. Where they frequently let themselves down is by not keeping a clear and detailed record of their discussions. 

Historically it has appeared that many practitioners relied on implied consent for treatment; that is consent inferred from patients’ actions rather than their words, such as the patient sitting on the patient couch and removing socks and shoes. Reliance on implied consent to treatment is fraught with dangers. Not least the dangers of being at cross purposes with the patient. Once you have explained the proposed examination, investigation or procedure to the patient, its risks and benefits and the available alternatives; and you have checked their understanding and explored whether they have any anxieties or questions, it is not an onerous task to ask them to confirm their consent. It is unwise to omit that final step and simply assume that the patient consents because they do not appear to object. In other words, you should obtain explicit consent for any examination, investigation or treatment. A clear note detailing the process should be included in the patient’s clinical record. It is not necessary to get the patient to sign a written consent form for every examination, investigation or treatment. The SCP Standard on Consent identifies those treatments where a written consent form must be completed. 

Conclusion

Maintaining clear contemporaneous records of consent plays a number of important roles, one of which is to protect you when your conduct is challenged. Good records may make the difference between a case going to court and a case withering on the vine. 

The SCP’s revised Standard on Consent reflect the standards that the Courts and professional regulators require of practitioners. They are intended to help you to protect your professional reputation and to assist the SCP in defending you when your practice is called into question. As well as the individual benefit to practitioners, good practice with respect to obtaining and recording consent will be to the benefit of all SCP members by making the management of claims more cost-effective. It is important that practitioners review the Standard and ensure that their practice reflects the prevailing expectations. 




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