The GMC has updated guidance on consent, which came into force on 9 November 2020. The updated guidance, Decision making and consent, places greater emphasis on doctors and patients taking decisions together based on exchange of relevant information specific to the individual patient.
Commenting on the guidance, the MDU’s head of advisory services Caroline Fryar, said:
“Obtaining consent is part of a continuing conversation with patients. The need for doctors to understand what is important to each individual patient has been emphasised in recent case law, so it is right that the guidance encompasses this.”
The updated guidance takes into account changes to recent case law (Montgomery v Lanarkshire Health Board) and emphasises the importance of knowing your individual patient. There is a strong focus on dialogue with patients, whether or not they are able to give their consent, and circumstances that might affect the decision making process.
Here’s a summary of what has changed in the updated guidance.
The GMC’s updated guidance on consent
Medico-legal adviser Dr Udvitha Nandasoma explores the key takeaways from the updated consent guidance in this short video.
Taking a proportionate approach
At the outset, doctors are reminded that the guidance applies to every health and care decision that is made with every patient (paragraph 1). This applies equally to decisions about mental and physical health regardless of where the interaction takes place, acknowledging that many consultations now take place remotely (paragraph 3).
However, it's acknowledged that not every paragraph will be relevant to every decision that is made (paragraph 5) and doctors will need to apply their judgement in individual circumstances, allowing a proportionate approach. This might arise, for example, during the treatment of emergencies where consent is still needed if the patient is conscious, but there will be less time to apply the guidance in detail.
As well as time constraints, the availability of resources is also considered. Obtaining consent does not always need to be a formal, time-consuming process (paragraph 6), particularly in circumstances where verbal consent can be relied upon, such as minimally or non-invasive interventions like examinations (paragraph 7).
Finding out what matters to a patient
It is important to note that the process of obtaining consent is not a one-off event but will involve ongoing discussion with the patient. With this in mind, more emphasis is placed on the importance of dialogue with individual patients and finding out what matters to the patient, including individual values and priorities (paragraphs 16-20). As part of this dialogue, it is important to find out what risk an individual patient would and would not be prepared to take (paragraph 20).
The guidance acknowledges that it wouldn’t be reasonable to discuss every possible risk of harm but that discussions should be tailored to each individual patient and be guided by what is important to them personally (paragraph 22).
Consider the type of consent you need
It is important to remember that consent isn’t only needed for medical interventions and invasive procedures. You should think about consent for every interaction you have with a patient. This may be for something as simple as taking their history, which may involve some very personal questions. It is also important to ensure you have consent before you examine a patient. In the MDU’s experience, serious allegations can be made if a patient has not understood why a particular examination is being carried out if it hasn’t been explained to them and their consent sought.
While placing your stethoscope under a patient’s breast to listen to their apex beat may seem perfectly normal to you, a patient won’t understand why this is part of your assessment of their heart. Similarly, a patient won’t know that feeling for femoral pulses may form part of your abdominal examination. Misunderstandings can arise from the most innocent of interactions and communication is key.
The more complex an intervention, the more discussion and dialogue is needed and it is likely that there will be a requirement for the patient, or person with parental responsibility in the case of a child, for them will need to sign a consent form. The patient should only be asked to sign this once a discussion has taken place and you and the patient are satisfied that they have all the information they need and understand it.
Many healthcare decisions, however, won’t require such formalities and you can rely on a patient’s verbal consent as long as you are satisfied they’ve had the opportunity to consider all the relevant information they need, which is summarised in paragraph 10 of the guidance. Find out more about consent and why it’s important.
Does the patient have capacity to make a decision?
Not all patients are able to make decisions for themselves and it is important to remember that mental capacity to make decisions may change over time and may also depend on the nature of the decision the patient needs to make. While a patient may be able to consent to, for example, having their blood taken, they may not be able to make more complex decisions about their health, such as having a major surgical procedure. Paragraphs 76 to 93 provide guidance for those times when your patient may lack capacity to make decisions. You can find out more about who can consent in this article by Dr Sally Old.
Delegation and support from the wider team – know your limits
The guidance acknowledges that uncertainty may exist when answering patients' questions and you should make clear the limits of your knowledge or if you are unable to answer a question with certainty (paragraphs 25 and 26).
The process of obtaining consent is not a one-off event but will involve ongoing discussion with the patient.
In addition to the GMC's Delegation and Referral guidance, the new consent guidance has its own paragraphs on responsibility and delegation (paragraphs 42 - 44). This makes it clear that part of the decision making process can be delegated, such as sharing information with the patient, but the responsibility for making sure consent is informed remains with the treating doctor.
As a medical student or junior doctor you will need to obtain consent from a patient, for example, when you need to examine them, take blood or site a cannula, however, obtaining consent for a more complex procedure or decision should only be discussed with the patient by someone who is competent to do so and preferably by the person who will carry out the procedure. If you don’t have the appropriate qualifications, training or experience and you are asked to do something that you feel is beyond the limits of your own competence, you should raise this.
You may not be in a position to obtain consent yourself but you can take the opportunity to observe a senior colleague doing so.
While the guidance reminds doctors of the importance of recording decisions in the patient’s medical records (paragraph 50), it acknowledges that a proportionate approach may need to be taken as to the level of detail (paragraph 51). For more complex procedures many hospitals will have checklists for patients to go through with the doctor which they sign once they are happy they understand and once their questions have been answered. If a patient asks any specific additional questions, it is important these are answered and a record made of the discussion in the notes.