Consent for treatment

Consent for treatment

Does a doctor have to get my consent for treatment?

It was once the case that patients were not given information about the risks associated with treatment carried out by doctors. Indeed, it was thought that too much information may be counterproductive to the objective of restoring a patient's health.

However, over the last 20 years the doctor-patient relationship has changed, and previous views and legal opinions expressed on obtaining consent from the patient have long since ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of healthcare services view their relationship.

Where to obtain help

A patient is entitled to know about their treatment. The health professional is obliged to obtain the patient’s consent to treatment. If they do not obtain consent and the patient suffers harm, the patient may be entitled to compensation. If you would like further information making a claim for compensation, where you have suffered harm and consent to treatment was not obtained, call 0333 123 9099, email enquiries@ibbclaims.co.uk or use the enquiry form to request a call back.

A patient has rights

One of the developments is that patients are now seen as individuals holding rights, rather than as passive recipients of care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. It is now very common to see patient groups and patients working in tandem with health professionals to improve healthcare services.

In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public, either as individuals, or as members of a team drawn from different professional backgrounds. The treatment they offer does not only depend upon clinical judgement, but also bureaucratic decisions such as matters of resource allocation, cost containment and hospital administration; decisions which are taken by non--medical professionals.

Changes in society

There have been other changes in society and in the provision of healthcare services. It is easy and common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side effects via such media as the Internet, patient support groups, and material issued by healthcare institutions.

The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by law as highlighting the ability of a citizen to understand the information being provided.

Therefore, it would be a mistake to view a patient as being uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors.

Change in approach by the General Medical Council and the National Institute for Clinical Excellence

These developments in society have been reflected in the way that health professionals, not just doctors, practice.

If one looks at the guidance given to doctors by the General Medical Council, under the heading "The duties of a doctor registered with the General Medical Council" it is stated they are to "work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect the patient's right to reach decisions with you about their treatment and care”.

What should a doctor tell a patient?

Another document titled Consent: patients at doctors making decisions together, describe a model of partnership between a doctor and their patient.

"The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side-effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non--clinical issues that are relevant to them. The patient decides whether to accept any of the opinions and, if so, which one".

Providing all necessary information and empowering a patient to make decisions can be particularly well illustrated in the field of maternity. As the National Institute for Clinical Excellence (NICE) stated in 2011, "pregnant women should be offered evidence-based information and support to enable them to make informed decisions about their care and treatment". Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.”

Does a doctor have to tell me about the risks?

The short answer is yes. The longer answer is that a doctor must tell a patient if treatment might result in a serious adverse outcome, even if the risk is very small, and should also tell patients about less serious complications if they occur frequently.

The General Medical Council acknowledge that an approach based upon the informed involvement of patients in their treatment, rather than being passive and potentially reluctant recipients, can have therapeutic benefits, and is regarded as an integral aspect of professionalism in treatment.

What about if I do not want to know about the risks of treatment?

A patient can decide that they do not wish to be informed of risks of injury (just as someone can choose to ignore information in a leaflet provided with their medicine). A doctor is not obliged to discuss the risks inherent in treatment when their patient makes clear they would prefer not to discuss the matter. Deciding whether a person is disinclined not to discuss risks may involve the doctor making a judgement; but this is a judgement which is not dependent upon medical expertise.

It is also true that the doctor must necessarily make a judgement as to how best to explain the risks to the patient and that providing an intelligible explanation may require skill. It is not sufficient for a doctor to use jargon- a clear explanation is required.

However, a doctor is not required to disclose information to their patient if they consider that it would be detrimental to the health of the patient to do so. However, this so-called therapeutic exception is what it says, an exception, not the general rule.  The general rule is to inform the patient of material risks.

The doctor is required to have a meaningful conversation with their patient

The doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of their condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that they are in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not fulfilled by bombarding the patient with technical information which they cannot reasonably be expected to grasp, and nor is it fulfilled by routinely demanding their signature on a consent form.

The doctor must inform the patient of material risks

The doctor, or other health professional, is under a duty to take reasonable care to ensure the patient is aware of material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

The test of what is material is determined on the facts of the particular case and whether a reasonable person in the patient's position would be likely to attach significance to the risk.

The assessment of whether a risk is material is not reduced to percentages. The significance of a risk is likely to reflect a variety of factors besides its magnitude; for example, the nature of the risk, the effect it would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. Therefore, in every case, the assessment is fact-sensitive, and also sensitive to the characteristics of the particular patient.

Does a doctor have to tell me about all risks? Are there exceptions?

A doctor is entitled to withhold from the patient information about a risk if disclosure would be seriously detrimental to the patient's health.

A doctor is also excused from conferring with a patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision.

What can I do if the doctor or other health professional did not obtain my consent and I have suffered harm?

If you have suffered harm as a result of a failure to obtain your consent and you have suffered harm you may be entitled to financial compensation. For advice and help call 0333 123 9099, email enquiries@ibbclaims.co.uk or use the enquiry form to request a call back.