Consenting and consultations
The importance of ensuring that you have followed a detailed and robust consenting process before undertaking an aesthetic procedure cannot be overemphasised. In the event of a complaint or formal claim being made against you, the paperwork and digital records that you complete with your patient during this process will be used as evidence in your defence. It is therefore vital that this documentation is as thorough as possible and that you are able to locate it easily, if required.
A patient has three years and four months to make a formal claim against you. This can be in the form of a solicitor’s letter or direct request for compensation. If you have only seen the patient once and do not receive notification of a claim until three years later, then you will need to rely on your documentation to remind yourself of the patient and their treatment journey.
Here, we will explore some of the key considerations you need to be aware of when it comes to consenting and consultations.
Principles of consent
Patients have a right to give or withhold consent for any procedure or treatment. Undertaking a treatment, or performing a procedure without their consent can constitute assault and potentially put you at risk of incurring criminal penalties.
Obtaining consent alone however is not sufficient – it is important to provide your patient with appropriate information as to the risks and benefits of a procedure/treatment before they consent to it. Failure to do so could constitute negligence and put you at risk of being sued by your patient. Medical practitioners must therefore ensure that they obtain informed consent from their patients. Whilst you may not wish to ‘frighten a patient off’ by drawing their attention to the potential risks of going ahead with a procedure, the impact on your practice of being successfully sued is likely to be more detrimental in the long run.
The process of obtaining informed consent assumes in the first instance that the patient has capacity to provide consent. Next, it requires the medical practitioner to discuss with the patient the purpose, risks and benefits of the proposed treatment and to communicate and document this process in detail. The patient’s choice does not have to be one of which the medical practitioner approves; a patient is free to make an ill-advised choice (although the practitioner may decide it is safer to say ‘no’ if they feel the patient is not suited to the treatment). The critical factor when it comes to consenting is that the patient’s consent must be informed by having all the risks and benefits of their chosen option explained clearly to them. This raises the crucial question – what risks should you warn a patient of?
Principles guiding communication of risk
The courts do not provide clear guidance as to a minimum level of risk that should be communicated to a patient. While the following is not an exhaustive list, it highlights the broad principles guiding communication of risk to patients, based on previous cases:
- A patient should be advised of any material risk inherent in the treatment proposed – a risk is ‘material’ if it is likely that a patient would ‘attach significance to it’
- The more serious the possible risk, the more likely it is that you should warn a patient about it
- If there is a 1-2% risk of a significant adverse event then the patient should be made aware of that risk, even if they have not asked
- If the patient specifically asks about the risks associated with a procedure/treatment, they should be warned about all potential complications and risks, however rare they may be
- If alternative (lower risk) treatments exist to achieve a particular result, you should discuss them with the patient
While the guidance on communicating risk to patients is vague, if you do not follow the correct procedure for obtaining informed consent from a patient and the treatment is not successful (even if that is not your fault), you could be sued. It is also important to note that consent may be effectively withdrawn during the course of a procedure. For example, if a patient asks you to stop during a procedure due to pain or discomfort, continuing would then constitute assault/negligence. To reduce the risk of a claim being made against you resulting from a treatment you have undertaken, there are two key principles that you must follow:
1) Ensure that you always take informed consent
2) Ensure that you can always produce evidence that it has been taken
Tips for taking consent
Here are a few other tips to help you when taking consent:
- Consider using a two-stage consenting process – this is particularly beneficial if the procedure is likely to result in a significant change to the patient’s appearance. In instances where you see the patient twice you could provide them with details of the risks / benefits at the first appointment and confirm and evidence the consent at the second appointment
- If you adopt a two-stage process, ensure that the patient has enough ‘cool off’ time between appointments to have considered their options carefully
- Tailor consent forms to the range of treatments that you offer to ensure that the relevant side effects are listed and ensure you have a separate consent form for each treatment
- During the consenting process use clear language – your patient is unlikely to be medically literate. This helps to manage your patient’s expectations as well as reducing the likelihood of any misunderstanding
- It may help to use diagrams to explain risks/benefits
- Ask the patient whether they have any specific concerns or questions they would like to discuss
- Try to ensure that the patient understands what the treatment is realistically likely to achieve and whether they will require further treatment to reach their desired outcome
- In cases where there are a number of risks to the patient, consider breaking the consent form into clearly headed sections with a signature box after each section. This helps to draw the patient’s attention to each specific risk. While a more detailed form will take additional time to complete, it could save time and help safeguard your reputation in the future
- Avoid consent which is directed to a particular choice – courts don’t like this
- Bear in mind that risk is relative from one person to the next – a risk that is insignificant to one person may matter greatly to another. For example, a minimal risk of impaired vision following treatment may be far more important to a fighter pilot than to an office worker; remember you are consenting the patient in front of you, not the general population
- Document the patient’s expectations and motivations for having the treatment. If you feel that you are unable to achieve their desired outcome then discuss with them what it is you can do and make sure it is all written down
- Check that a patient can comply with any necessary aftercare – for example, if they must keep out of the sun for two weeks after the treatment check they don’t have a beach holiday booked for the following week
- Always ask about a prospective patient’s psychiatric as well as physical medical history – assess very carefully whether you know enough about a prospective patient’s psychiatric history before agreeing to treat them. If you sense that there are gaps, consider asking their GP for more information (beware of the patient who minimises a psychiatric history)
- At the conclusion of the consenting process ask yourself whether you are satisfied that the patient has listened and understood the information you have provided. If necessary, confirm they have taken it all in by asking them what they understand the risks to be. This allows you the opportunity to go through any information they have missed
Tips for documenting the consenting process
There is no single ‘best way’ of documenting the consenting process, but the more comprehensive your records, the better position you will be in to defend a claim against you.
- It is a well-known fact that patients do not retain all the information they are given verbally, so ensure that you provide your patient with the relevant documentation to take away with them. In addition, you should record the fact that you have provided this information, as well as discussing the risks and benefits with them in person. At the treatment stage, ask and record whether or not they have any questions arising from the information you provided
- Ideally, undertake a two-stage consent process whereby you provide your patient with documentation at the first appointment so that they can take it away to review and ask questions about it at the second appointment, prior to giving consent
- It is also advisable to provide documentation to the patient specifically detailing any aftercare needed/risks of noncompliance/
contra-indicated medication, always ensuring that you record that this information has been provided and getting your patient to initial the consent form or tick a box to acknowledge receipt
- If you have used diagrams/drawings to illustrate a treatment/procedure, keep them with the notes
- Take ‘before’ and ‘after’ photographs of the patient; in surgery cases these photographs can include the patient in a ‘marked up’ state, evidencing the patient’s compliance in identifying where the surgery will take place. Patients can easily provide their own photographs in the event of a claim and having your originals constitutes evidence in the event that a patient were to alter their own photographs, which is easily done with digital technology
- Ensure any specific or unusual issues raised by your patient are documented, together with the advice given
- Don’t assume that a patient having a ‘repeat’ treatment does not need to be consented again. Much will depend on the gap between treatments – for example, there is a world of difference between a patient undergoing a course of treatments each week over five weeks and a patient re-attending for a second single treatment after a gap of six months.
- Most importantly, ensure that the consenting documentation is signed and dated. If you have follow up appointments, ensure that these are also signed and dated each time you see the patient
As the practitioner, it is your responsibility to seek informed consent before carrying out a procedure on a patient. Failure to warn a patient about any potential adverse outcomes prior to obtaining their consent puts you at risk of a claim being made against you. Ensuring that you have a robust consenting and consultation procedure in place, supported by evidence (detailed, signed and dated documentation), is key to minimising this risk and will provide your defence should such a situation arise at a future date.
Consenting and consultations
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