Consenting and consultations
The impact of the COVID-19 pandemic on the aesthetics field has been particularly turbulent. With the whole of the UK under strict virus curbs at the time of writing and clinics’ doors closed once again for the time being, the future remains uncertain. Yet, despite the challenges, Hamilton Fraser Cosmetic Insurance’s surveys about how practitioners are coping during this period reveal a willingness to adapt and signs of optimism. As one practitioner remarked, “Be ready for the tidal wave, people will still want treatment, be ready!”
If you had a profitable business that was growing before the pandemic, now is a great time to plan for a return, when conditions allow. As we emerge from the pandemic, as part of your business planning for 2021, take advantage of this period to make sure your core business practices are robust and ready for the return.
In this guide, we look at two of the most crucial elements in aesthetic practice – consenting and consultations. It’s vital that you follow a detailed and robust consenting process before carrying out an aesthetic procedure. By taking the time to fine tune your consenting and consultation processes as much as you can now, you’ll be in the best shape possible once you’re able to practise again.
There are of course some unique considerations that apply to consenting and consultations during the COVID-19 pandemic. And since it’s likely that the impact of the pandemic will be with us for some time yet, practitioners will need to continue to adapt as the situation evolves. But the wider principles of consent, which exist in order to protect both the practitioner and the patient, remain relevant both during the pandemic and beyond.
In this guide, we’ll take a look at the impact of COVID-19 on consenting and consultations first, before exploring the broader considerations you need to be aware of.
The impact of COVID-19 on consenting
When it comes to the consent process, the same principles should apply, regardless of whether the consultation takes place face to face or virtually. However, it is also important for practitioners to think about the impact of COVID-19 on the consent discussion. What additional information and processes should be included while the COVID-19 virus is still present?
The crucial impact that COVID-19 has on consenting is that, in addition to treatment specific consent, the practitioner must make sure that the patient has a complete and informed understanding of the potential impact that COVID-19 might have upon the treatment. For example, there is evidence that dermal fillers given in the presence of a recent viral infection can increase the risk of delayed hypersensitivity reactions. It’s important that this is reflected in medical history taking and post-procedural care, and forms part of the patient’s understanding and consent.
The BACN suggests the following adaptations to consenting in its guidance:
- Consider using an electronic format
- Send aftercare advice sheets electronically
- Make sure the patient is fully aware of any increased risk relating to individual treatments
- Consider getting patients to sign an additional specific COVID-19 consent (the BACN has created a template on page 18 of their guidance)
- Highlight the implications of a further lockdown on managing complications and immunological reactions
- Make sure the patient understands that a face-to-face follow up or review appointment may not be possible if either practitioner or patient needs to self isolate or if there is a further lockdown
The impact of COVID-19 on consultations
Since the pandemic, many consultations between practitioners and patients have taken place remotely and this could continue for some time. There may even be a permanent shift as we have seen that virtual consultations often offer greater flexibility to both patients and practitioners and, as the technology develops, new features are likely to further improve the virtual consultation experience in the future.
Much of the recommended best practices for consultations during the pandemic involve shifting to remote processes wherever possible. For example, bookings should be made electronically and staff trained to ask health screening questions over the phone or electronically. The BACN has created a Pre-appointment wellness screening checklist which can be found on page 19 of their guidance, and these should be sent and returned electronically.
In their guest blog for Hamilton Fraser Cosmetic Insurance, Dr Tristan Mehta and Dr Kalpna Pindolia, from Harley Academy, discuss the impact of COVID-19 on patient selection, highlighting the importance of assessing certain physical and psychological drivers in the consultation process that may influence appropriate patient selection. For example, awareness of body image may have been heightened as a result of increased media usage – sometimes termed the ‘zoom effect’ and the isolation and psychological effects of the pandemic may have contributed to an increase in body dysmorphic disorder.
Emma Bracchi, Senior Claims Technician at Hamilton Fraser Cosmetic Insurance states, “Following the COVID pandemic, patient selection is even more important than ever. During your consultation, please take extra care to look out for ‘red flag’ signs and if you feel the patient is not suitable for treatment, do not be afraid to say ‘no’. Hamilton Fraser Cosmetic Insurance is here to assist if you need guidance on declining patients.”
Additional resources which offer practical advice for practitioners around the impact of COVID-19, including guidance on the consenting and consultation process, include the British Association of Cosmetic Nurses (BACN) Guidelines for practitioners, which is designed to be used in conjunction with relevant government guidelines. The JCCP has also published guidance which is outlined in its document, Continued preparation and adaptation of workplace and practice during COVID-19.
As already highlighted, the broad principles of consent remain relevant both during the pandemic and beyond. Next, we’ll 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. Carrying out a treatment or performing a procedure without a patient’s proper consent can actually constitute assault and potentially put you at risk of incurring criminal penalties.
But obtaining consent alone is not sufficient – it’s important to provide your patient with appropriate information about the risks and benefits of a procedure or treatment before they consent to it. Failure to do this could by portrayed as negligence and put you at risk of being sued by your patient. Medical practitioners must therefore make sure 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 than losing a patient in this way.
The process of obtaining informed consent is based firstly on the assumption that the patient has capacity to provide consent. Next, it requires the aesthetic 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 practitioner doesn’t have to approve of the patient’s choice – 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 per cent risk of a significant adverse event then the patient should be made aware of that risk, even if they have not asked about it
- If the patient specifically asks about the risks associated with a procedure or treatment, you should warn them 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 it 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 or negligence. To reduce the risk of a claim being made against you resulting from a treatment you have performed, there are two key principles that you must follow:
1) Make sure that you always take informed consent
2) Make sure 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 and 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 make sure that the relevant side effects are listed and have a separate consent form for each treatment
- During the consenting process use clear language – your patient is unlikely to be familiar with medical terminology. 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 and benefits
- Ask the patient whether they have any specific concerns or questions they would like to discuss
- Try to make sure 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 as courts don’t like this approach
- 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
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 the consenting process will be used as evidence in your defence. This documentation should therefore be as thorough as possible and you need to be 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 don’t 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.
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. In the post-COVID world it is likely that there will be a greater shift to digital forms of documentation. Becoming a ‘paperless practitioner’ can help you not only be more organised, but compliant too.
- It is a well-known fact that patients don’t retain all the information they’re given verbally, so provide your patient with the relevant documentation to take away with them if you’ve had a face to face consultation, or follow up electronically. 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 or via a virtual consultation. At the treatment stage, ask and record whether or not they have any questions about the information you provided
- Ideally, carry out a two-stage consent process whereby you provide your patient with documentation at the first appointment so that they can review it and ask questions about it at the second appointment, prior to giving consent
- It is also a good idea to provide documentation to the patient specifically explaining any aftercare needed and the risks of noncompliance or contra-indicated medication. Always make sure that you record that this information has been provided and get your patient to initial the consent form or tick a box to acknowledge receipt
- If you have used diagrams or drawings to illustrate a treatment or 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. This is particularly relevant following the COVID-19 pandemic, where even regular patients will have had a significant gap between treatments
- Most importantly, make sure that the consenting documentation is signed (this could be electronically) and dated. If you have follow up appointments, ensure that these are also signed and dated each time you see the patient, whether virtually or face to face
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. Making sure 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.
For more guidance on the importance of consenting and consultations in aesthetics, read our guest blog by Dr Rupert Critchley, director and founder of VIVA Skin Clinics, which explores the importance of consultations and consent in the aesthetics industry.
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