It should be no surprise to healthcare professionals that the legal requirement to explain the risks and benefits of any proposed treatment is no longer determined by what a responsible body of such professionals would regard as appropriate or accepted practice, but rather it is a duty to take reasonable care to ensure that patients are aware of all material risks. The question of whether a risk is material or not being based on what a reasonable person in the patient’s position would attach significance to, or risks which the healthcare professional is or should reasonably be aware that this particular patient would be likely to attach significance to, albeit that a risk which is merely hypothetical or academic would not usually be material.
Hence, how frequently a risk occurs or even the gravity of the risk are now only two factors, and a different answer to the subjective question of materiality might be reached in relation to Patient A versus Patient B or C. There are a number of helpful patient information leaflets and even electronic patient consent tools available, but to be safe you will need to have an individually tailored dialogue about the potential benefits and harms to this specific patient. Being guided by what matters to that patient in particular, their medical history and characteristics, sharing information in a way that they can understand. Simply providing standardised information or getting a signature on a consent form will often not be enough.
The duty extends to advising of reasonable alternatives or variants, including the option of having no treatment at all. For the present at least, the law still determines whether an alternative or variant is reasonable or not by reference to what a responsible body of such professionals would regard as reasonable. Hence you need not discuss any possible alternative; it must be something in the knowledge of a reasonably competent practitioner, must be appropriate and must be accepted clinical practice.
Of course, even an optimal consent process may be worthless if it is not properly documented at the time (even then, some patients will later dispute that the discussion actually took place in those terms should there be a bad outcome).
The above advice assumes that the patient is an adult with capacity. There is also a therapeutic exception where disclosure of information would of itself be likely to cause serious and immediate harm to the patient.
Where a treatment seems extreme, not in a patient’s best interests or the patient seems vulnerable, consider whether there could be a mental health history that has not been divulged to you and whether you should see the patient with a specialist colleague. We have almost lost count of the number of times we have heard a healthcare professional say, “I had a feeling that patient would bring a complaint or a claim”, so listen to those instincts and consider involving a chaperon as witness.
With cosmetic or aesthetic treatment, the bar is set somewhat high by the Courts and professionals who do not take steps to safeguard their reputations and practices will very likely come unstuck. Safety in beauty treatments and procedures is very important, especially as many of the procedures are invasive.
We are experts at advising healthcare professionals on consent, either in response to complaints or claims, or else risk management to reduce the risk of being snared.
If you have any questions on the above, please contact Matthew Trinder or Andrea James for more information.