Published: 05/06/2003, Volume II3, No. 5858 Page 33
There are three components to gaining consent from a patient: the person who gives consent must have the capacity to do so; the consent must be given voluntarily; and the patient must be properly informed.
Each strand of the process is fraught with difficulties. For example, how can a health professional properly assess a patient's capacity when using an interpreter? How does a physiotherapist ensure patients are not coerced when the basis of good physiotherapy is coercion?
It is, however, the third component that causes the most excitement. Lawyers and academics ask whether a patient can ever be properly informed if they have no medical qualifications.
Clinicians argue that if they were to properly inform their patients, they could only see one or two a month.While these debates rage, patients' lawyers are moving in.
The Department of Health and the General Medical Council have been clear on the level of information to be given to a patient (www. doh. gov. uk/ consent).Health professionals must discuss the nature and purpose of treatment, its risks and benefits and the alternatives, taking into account the patient's material or individual circumstances.
The rationale behind this is admirable; the NHS must stop surprising its patients. Surprised patients sue (Chester v Afshar, www. lawreports. co. uk/ may02view. htm).
It is also a question of patient autonomy.Health professionals would want to know if a procedure they were to have could result in paralysis - so why do many believe this information should be withheld from their patients, depriving them of the right to make an informed choice? The law is clear that it is not enough to say you withheld information fearing the patient could become upset or refuse treatment.
So health professionals need practical assistance if they are to discharge the potentially onerous duty of properly informing their patients.
Ensure staff know what is meant by material information and that it goes beyond significant risks.
Healthcare practitioners must ensure patients receive the information they, as an individual, require to make a treatment choice. They must also make sure patients have enough time to consider the information.
Develop a material information sheet for each patient. This single, up-to-date reference point for staff would detail profession, hobbies, dependents, religion, sexuality and so on and provide a space for each healthcare professional to sign, confirming the material information has been considered and is current.
Use patient information leaflets properly. Leaflets should have serial numbers and old editions must be kept.When a patient is given a leaflet, the number should be entered in their notes.
Consider giving the patient two copies and ask them to sign and return one to show they have read and understood it.Make sure the leaflet contains a contact telephone number.Many professional associations provide patient information leaflets on common procedures but do not necessarily provide all the information required about a procedure (www. acpgbi. org. uk/ patient_info/patient_info. html).
Consider introducing electronic patient information systems.
These have the benefit of providing comprehensive information through pictures, text and sound. They can be completed in the patient's own time and can print leaflets for the patient to take home.
They also provide an auditable trail of information that can be printed out, signed by the patient and kept in their records. It is produced by PIS developer Dumas in association with InPractice training (for more information, see www. picsystem. com).
Develop department checklists for clinicians setting out the baseline information every patient must receive. The healthcare professional then records the provision of such information by reference to the checklist, and can then concentrate on patientspecific information.
Staff must be made aware that if their actions are not recorded, they did not, in effect, occur. All consent must be recorded accurately.
Kate Hill is associate partner, RadcliffesLeBrasseur solicitors and managing director, InPractice training (www. inpracticetraining. com).
Child 'A'by its mother and litigation friend 'B' v (1) Ministry of Defence (2) Guy's and St Thomas'Hospital trust
Since 1996, armed forces personnel have received treatment from foreign healthcare providers.This case established that the NHS and Ministry of Defence have no duty to ensure the medical organisations exercise reasonable care and skill.The way the NHS and MoD selected providers and managed the contracts proved decisive.
Atkinson and another v Seghal
This case continues the recent trend for applying a generous test when considering whether a claimant is entitled to recover damages for nervous shock.A mother recovered damages for psychiatric injury after seeing her daughter's disfigured body at the mortuary some time after an accident.Once again, the Appeal Court said an event can be made up of a series of components.The question is whether the component causing the shock was part of the 'immediate aftermath'.
Croft v Broadstairs and St Peters town council
This claim for stress at work failed because the employee failed to prove her employers were aware she was psychiatrically vulnerable.She claimed a senior member of staff, who she was friendly with outside work, was aware of her condition and ongoing treatment.
This is the first of a regular page on legal issues, published every fortnight. If you are interested in contributing or have an opinion on what is published, e-mail nick. edwards@emap. com
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