Author: Cerys Griffith, Becky Maxwell / Codes: CC18, CC19 / Published: 09/01/2015
The legal aspects of Emergency Medicine can be difficult and often a trainee spends less time reading about these, unless a specific situation arises in work. These scenarios can be complex, usually occurring at times of the day when the department is busy or there is a lack of senior staff around. A sound knowledge of the basic legal principles can make these situations less daunting when they do happen.
All opinions, unless otherwise stated or referenced, are my own.
Perform your medical duties calmlyconcealing most things from your patient while you are attending to himrevealing nothing of the patients future or present condition. Hippocrates.
What is consent?
A patient with an injured hand is next to be seen, he comes in to see you and he holds out his hand. Is his consent implied or informed? The answer depends entirely on what you have said to him and on what he has understood, demonstrated by what he is able to communicate back to you.
If a patient does not consent to a physical intervention, examination, or indeed any form of physical contact, then in law the doctor might be accused of committing assault and battery against the person. However, most legal disputes relating to consent arise when the patient claims that they have suffered an outcome that they did not consent to. Claiming battery in these cases is discouraged, and most cases are therefore argued on clinical negligence grounds. The claimant might argue that the duty of care owed by the doctor during the consent process failed, and that the failure of adequate consent led to harm. Legal commentators suggest that our professional standards, set out by the General Medical Council (GMC), demand more accountability and impose more stringent rules than the law is able to efficiently achieve.
How informed is appropriate?
There are three essential elements to fulfil in order for consent to be valid: The patient must be informed; he must have the capacity to take that specific decision; and must be free from undue influence, in order to make a decision voluntarily.
Professional guidance from the GMC states that:
The amount of information about risk that you should share with patients will depend on the individual patient and what they want or need to know.
However, they also say that we must avoid making judgments about patients:
You must not make assumptions about a patient’s understanding of risk or the importance they attach to different outcomes.
In Law, traditionally a doctors practice was judged using the Bolam Test. The case brought by Bolam was that his doctor failed in his duty to inform him of the risks of electroconvulsive therapy, during which he had suffered acetabular fractures. In this well-known case, the ruling deemed that medical practice had been acceptable.
[The doctor] has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
Some years later in the 1980s, Mrs. Sidaway claimed that if she had been informed about the risks of paralysis she would not have consented to cord decompression surgery. The judges in the House of Lords rejected her claim that the consent process by her surgeon had been negligent, but they introduced new perspective on what was acceptable medical practice in other jurisdictions. They recognised the doctrine of informed consent that was existing practice in the USA and gave weight to the right of a patients self-determination.
There followed a progressive change in attitude of the law courts, consistent with the departure from the paternalistic doctor-patient relationship, to a more patient-centered approach. The reasonable or “prudent patient test, considers what a reasonable patient would expect to know and understand about their proposed medical treatment. For example, in the case of Pearce v United Bristol Healthcare NHS Trust an overdue baby died in utero after advice from the doctor to let nature take its course. In court the risk of still-birth was quoted as 0.1-0.2%. Lord Woolf stated:
If there is a significant risk which would affect the judgment of a reasonable patient, thenit is the responsibility of a doctor to inform the patient of that significant risk
The numerical risk was not deemed to be significant in this case however it was recognised that the importance of a significant risk might be perceived differently by a doctor and his patient. Moving forward in time, in 2004 Lord Steyn stated:
In modern law medical paternalism no longer rules and a patient has a prima facie right to be informedof a small, but well established risk of serious injury
In recent years the law has deemed that a combination of these approaches represents acceptable practice. In discussing treatment we must fulfil the basic requirements of the Bolam test, and consider the wishes of the prudent patient in order to fulfil our duty of care. It is generally agreed that the duty of care owed to the patient encompasses all things relevant to medical practice. This includes being up to date, following proper procedure and acknowledging clinical and professional guidance.
In the case of Birch v UCL Hospital NHS Foundation Trust the claimant suffered a stroke following angiography. She acknowledged the 1% risk of stroke during the consent process, but she claimed (and succeeded) that she had not been offered an MRI as an alternative. This is an excerpt from the case by Cranston J,
I am convinced thatno reasonable, prudent medical practitioner would have failed to discuss the respective modalities and risksshe was denied the opportunity to make an informed choice
On a practical level our professional guidance says that we must inform patients about serious and life-threatening risks even if these are very rare, and to also inform of risks that are frequently occurring. It is important also to remember to discuss alternative treatment possibilities, their likely outcomes, and the option of no treatment at all, if patients are to be fully informed.
If we achieve this our patient is in a position to consider giving valid consent, that is, if they have the mental capacity and voluntariness to do so.
Writing it down
In most cases it is acceptable to write down the details of your conversation with your patient in the ED patient record, including the main risks that have been discussed and the intended outcome. There is a role for the use of consent forms for such procedures but well written contemporaneous notes are similarly valid. The amount of information we discuss and subsequently write down will vary according to the risk of the proposed treatment. It is appropriate that procedures with an established risk, yet commonly performed, for example a Biers Block, or procedural sedation, will involve a longer discussion than is required for a simple wound closure. Most EDs use patient information leaflets that aid patient understanding and help to deliver a reproducible standard of care.
If consent is to be valid, the patient must be appropriately informed, and the patient must have capacity to their decision, voluntarily.
Refusal of consent in competent adults, minors and in those without mental capacity will be covered in Consent:
- Hippocrates, Decorum. Jones W editor. Hippocrates with an English Translation.
- GMC. Consent guidance: Patients and doctors making decisions together (2008).
- Emily Jackson. Medical Law: Text, cases and materials. 2nd Ed 2010. OUP.
- Bolam v Friern Hospital Management Committee  WLR 582.
- Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudley Hospital  AC 871.
- Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 (CA).
- Chester v Afshar  UKHL 41.
- Birch v UCL Hospital NHS Foundation Trust  EWHC 2237 (QB).