The GMC's new guidance, Decision making and consent comes into effect on 9 November 2020 and replaces the previous consent guidance. It takes into account changes to recent case law* 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.
Seven principles of consent
The guidance begins by setting out the seven principles of decision making and consent. These are:
- All patients have the right to be involved in decisions about their treatment and care and be supported to make informed decisions if they are able.
- Decision making is an ongoing process focused on meaningful dialogue: the exchange of relevant information specific to the individual patient.
- All patients have the right to be listened to, and to be given the information they need to make a decision and the time and support they need to understand it.
- Doctors must try to find out what matters to patients so they can share relevant information about the benefits and harms of proposed options and reasonable alternatives, including the option to take no action.
- Doctors must start from the presumption that all adult patients have capacity to make decisions about their treatment and care. A patient can only be judged to lack capacity to make a specific decision at a specific time, and only after assessment in line with legal requirements.
- The choice of treatment or care for patients who lack capacity must be of overall benefit to them, and decisions should be made in consultation with those who are close to them or advocating for them.
- Patients whose right to consent is affected by law should be supported to be involved in the decision-making process, and to exercise choice if possible.
Some key aspects of the new guidance are explained below.
Scope and application
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).
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).
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).
Delegation and note taking
In addition to the GMC's Delegation and Referral guidance, the new consent guidance has its own paragraphs on responsibility and delegation (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.
Whilst 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).
Other consent dilemmas
The guidance draws on other GMC supplementary guidance in that it refers to the consent requirements in relation to audio and visual recordings of patients (paragraphs 52-53).
Additional guidance is provided on what to consider when reviewing decisions immediately prior to providing care, if some time has elapsed since the original decision was made (paragraphs 56-59).
The guidance acknowledges the pressures doctors are working under and encourages doctors to consider the role of the wider healthcare team and what other sources of information and support might be available to the patient (paragraph 60).
Of reassurance to doctors is that the guidance makes clear that only serious or persistent failure to follow it, which poses a risk to patient safety or the public trust in the profession, will put a doctor’s registration at risk.
Members are advised to familiarise themselves with the updated guidance. In addition, the MDU's team of expert advisers are on standby to answer your specific consent queries.
* Montgomery v Lanarkshire Health Board
This page was correct at publication on 03/11/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
by Dr Kathryn Leask BSc (Hons) MBChB (Hons) LLB MA MRCPCH FFFLM RCPathME DMedEth Medico-legal adviser
Kathryn has been a medico-legal adviser with the MDU since 2007 and is a team leader, trainer and mentor in the medical advisory department. Before joining the MDU, she worked in paediatrics gaining her MRCPCH in 2002 and did her specialty training in clinical genetics. She has an MA in Healthcare Ethics and Law, a Bachelor of Law and a Professional Doctorate in Medical Ethics. She is also a fellow of the Faculty of Forensic and Legal Medicine and has previously been an examiner and deputy chief examiner for the faculty. Kathryn is currently a member of the faculty’s training and education subcommittee and a member of the Royal College of Pathologists (medical examiner).