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Informed consent
The Health Service Ombudsman, Ann Abraham issued a report last week
highlighting that the root of most complaints against trusts and health
authorities was due to lack of communication and insufficient informed consent.
Lesley Herbertson, head of clinical negligence at Alexander Harris, talks to
Veronica Cowan...
A report out last week
by the Health Service Ombudsman, Ann Abraham, criticised trusts and health
authorities and highlighted two particular issues: lack of communication; and
failure to obtain informed consent. "Failures of communication are at the
root of many of the complaints and claims that The Medical Protection Society
(MPS) assists doctors with each year", according to a spokesman.
This reflects the experience of Lesley Herbertson, head of clinical negligence
at Alexander Harris: "A number of people contact us about poor
communication, but whether they develop into a negligence case on informed
consent depends on a number of issues. There have been initiatives to tackle the
way doctors seek consent. The National Institute for Clinical Excellence has
devised specific guidelines, but it is clear doctors are not abiding by them,
and this would make it easier to prove negligence in a consent case".
Consent is needed for all physical examinations, and the patient must be capable
of giving consent, be sufficiently informed to make a considered decision and it
must be voluntary. So what would be the implications of failure to get consent?
"Technically, it could be a battery - depending on what occurred - but one
would tend to plead negligence, unless what was done was totally outside what
was consented to", Ms Herbertson said, adding: "Any damages would
depend on what happened and the effect, but the difficult issue is causation.
The patient might say s/he would not have gone ahead, but proving this can be
the most difficult area".
The MPS spokesman notes: "Consent is part of an ongoing process, and is not
just a signature on a piece of paper but the result of proper dialogue between
doctor and patient. It is essential that patients feels they are in a position
to make genuine choices rather than are being led towards a decision that the
doctor thinks is preferable." Ms Herbertson agrees, and confirms that
medical paternalism can still affect consent: "We had a case in which the
doctor thought an anal sphincter repair was appropriate, but did not tell the
patient about the pros and cons because he thought it was the right way forward
but the patient thought it would be simple removal of skin tags".
She added that in another case the consent form referred to removal of the
ovaries, but the patient had indicated to the doctor previously that this should
only be done if necessary. "None of the prior conversation appears on the
consent form but doctors try and rely on the letter of the form".
The Ombudsman referred in particular to failures of communication between
medical and nursing staff and with patients and their carers. In today's
healthcare system, which involves an extended team, is this a complicating
factor? Ms Herbertson believes it is: "Healthcare professionals come under
a lot of different heads, with multi-disciplinary teams looking after
individuals, and often no proper co-ordination of treatment. The team may not be
properly used, she said, instancing a case she is currently running; "A
lady requested a double mastectomy because of a family history of breast cancer,
which the surgeon performed. We are arguing that he should have first made sure
she was counseled by a geneticist, a psychologist and a second breast surgeon,
given the devastating effect of such a procedure".
The doctor who has ultimate responsibility for the care of the patient should
ensue proper consent is obtained according to Ms Herbertson. The Ombudsman
upheld the complaint of a lady who underwent a number of unsuccessful operations
to reduce urinary leakage, agreeing she had not been given the opportunity to
give informed consent to two of them, and was not warned about potential
complications.
The Ombudsman's clinical assessor advised that the more operations a patient
has, the more risk there is of complications arising, and the specific
complications suffered - excessive bleeding and a worsening of her symptoms -
would be known risks for such a patient. Her consent was obtained on three
occasions by different junior doctors, and the Ombudsman concluded that the
consultant was responsible for ensuring she was provided with sufficient
information to enable her to make an informed choice either directly, or
indirectly through trained junior staff.(03/04/03)
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