Feedback please about the new Royal College of Surgeons 'Consent' guidance
Can I have some feedback please, about the way I have expressed 'informed consent' compared to the way some recent guidance expresses it ? I am asking the same question on the DiA Facebook page and in the DiC discussion forum.
Last week, I had some 'comments' published to a BMJ article - the series of comments is at:
http://www.bmj.com/content/355/bmj.i5674/rapid-responses
Now, there was a court case decades ago, called 'Bolam': in essence, the ruling was that doctors as a group, were allowed to decide how much information about offered treatments, had to be disclosed to patients. The law has moved on - and a recent court case called 'Montgomery' has thrown out 'Bolam', for consultations.
I wrote in a BMJ piece I titled ''Bolam' does not apply to consultations - see 'Montgomery' : Margaret McCartney: Cameras and complaints' on 26 th October this:
'The Montgomery ruling made it clear that a different test applies to consultations: so far as I can see [as this is 'recent law' uncertainty still hangs over its real-world application] the law is now 'the requirement is for the clinician to disclose everything which might affect the decision made by the patient involved in the consultation, and crucially failure to satisfy the test is based on 'the opinion of patients [as a group] about that word 'everything''.'
The next morning I woke up and heard on BBC Radio 4 that the Royal College of Surgeons had just published some new guidance about consent - it is called 'Consent: Supported Decision-Making A GUIDE TO GOOD PRACTICE' and you can download it as a PDF from the RCS website.
The thing I was pointing at in my piece on the BMJ, the RCS describes differently in its new guidance - the RCS uses this wording:
'Material risks for each option should be discussed with the patient. The test of materiality is twofold: whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would likely attach significance to it.'
THIS IS MY QUESTION - do my wording, and the RCS wording, SEEM TO MEAN DIFFERENT THINGS ?
I'll repeat the two sets of words, together:
Me:
the requirement is for the clinician to disclose everything which might affect the decision made by the patient involved in the consultation, and crucially failure to satisfy the test is based on 'the opinion of patients [as a group] about that word 'everything''
Royal College of Surgeons:
Material risks for each option should be discussed with the patient. The test of materiality is twofold: whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would likely attach significance to it.
I ask this, because TO ME THEY SEEM TO BE SAYING THE SAME THING - but, a doctor sent me this in an e-mail yesterday:
You say: "the law is now 'the requirement is for the clinician to disclose everything which might affect the decision made by the patient involved in the consultation, and crucially failure to satisfy the test is based on 'the opinion of patients [as a group] about that word 'everything''.' That is not my interpretation. The legal duty is to set out "reasonable" options and explain the "material" risks to the patient of each option. It has to be individualised to that particular patient and so what is material to one patient may not be to another.
There is perhaps an issue around 'reasonable options' and my use of 'everything which might affect the decision made by the patient', because options which are clinically ineffective, or which are not on offer (for example, are clinically effective but too expensive for the NHS to offer), would not be part of the consultation anyway [with the possible exception of 'if you went private, then you could pay for ...'].
It is also possible, that because I was constructing my wording 'on the hoof' and with an emphasis on 'Bolam has gone', I did not make it clear enough that 'the patient involved in the consultation' was supposed to mean 'the patient as an individual' (but it should be obvious that it couldn't mean anything else - there is only that particular patient there, to make a decision !).
Feedback on this - from anyone, clinicians, lay people, everyone - would be much appreciated.
Hi Mike
Yes my feeling would be that you are both saying the same thing, [both being you and BMC], however everything there is always the problem of interpretation. It seems to me that it doesn't matter how specific you are in the words you use, there is always this question of interpretation. I don't think we will ever be able to fully overcome this problem, but testing it our will help. It is just a pity that often we are dependent on case law, [usually after some tragic or avoidable event] to tell us how the words are to be interpreted. Maybe in this case it is about ensuring that the patient is advised to ask the question about the level of information being provided. Easier said than done I know.
Thanks Liz,
I suspect that the doctor who disliked my wording, probably doesn't like my interpretation of 'a reasonable person in the patient's position'.
But, that is exactly where the complexity rests.
It is clear that:
1) the courts have said that the medical profession cannot be the judge of whether a doctor has disclosed sufficient information during a consultation;
2) the 'imperative' is now to see things from the patient's position;
3) there is no implication in this ruling that every consent discussion should be subject to a court ruling or even worse a subsequent jury trial.
But, while there is a reasonably definable concept of 'medical opinion', where do we find, to ask during the consultation, 'a reasonable person' ?
My phrasing - the opinion of patients [as a group] - is intended to address that difficulty: surely if 'somehow we could ask all patients' then their average position would be 'that of a reasonable person' ?
I FULLY ADMIT that you CANNOT 'ask all patients' - my wording was to stress 'that the 'test' has to be looked at from the patient's perspective', if 'the professional perspective' is now seen as 'tainted by professional perspective' [which I think is another way of expressing the Montgomery ruling].
See also my newer (posted minutes ago) piece, where I make a further observation about the wording used in Montgomery and repeated in the RCS guidance, at: