Ask the expert - capacity and consent

Dr Patrice Baptiste shares a challenging case

Recently I assisted with a case where a female patient had undergone a stoma formation, but it had not gone as planned. The stoma kept retracting and the consultant explained to the patient and her family that the cause of this was his own technical error. The family were understandably very upset and sought legal advice. They also demanded that another team take over the care of the patient, which was arranged.

Two weeks later the situation had worsened and the patient was not recovering, but deteriorating. She repeatedly expressed a wish to die and wished to refuse further treatment. Her capacity was assessed by two consultants, and she was found to have capacity. Although the family objected at first they finally agreed with the plan of palliation and end of life care. The patient was moved to a side room where she passed away shortly after the decision was made.

Medical Protection medicolegal adviser Dr Marika Davies shares her advice:

This was clearly a distressing experience for the patient and her family, and a difficult situation for the clinical team to manage. The first consultant was right to inform the patient of the error he had made. Doctors have a professional obligation, as set out by the General Medical Council (GMC), to be open and honest with patients when things go wrong.

Hospitals in England also have a legal duty to inform and apologise to patients if there have been mistakes in their care that have led to significant harm. Patients should be told that the error will be investigated to see what lessons can be learned, and should be given details of the hospital complaints procedures, which may help them to get the answers they want.

The family in this case chose to seek legal advice, but just because there has been an error does not mean there has been negligence. Some complications are a recognised risk of surgery, which is why it is important to ensure patients are advised of all relevant risks when seeking their consent to surgery, so they are able to make an informed decision whether or not to proceed. Good documentation of the discussion about risks is invaluable if a claim arises.

If a patient refuses treatment then their wishes should be respected, provided you are satisfied the patient has the capacity to make that decision. A person should be presumed to have capacity, but in this case, given the seriousness of this patient’s particular decision, it was sensible to assess this formally and obtain a second opinion from another consultant. Again, good documentation of the assessment and the reasons for any decisions made will be very useful if any concerns are expressed at a later date.

Although the family did not agree with the management plan, they were not entitled to overrule the patient’s refusal of treatment, as she had capacity to make decisions for herself.  In such cases good communication with the family (with the consent of the patient) is important in order to gain their trust and help them to understand the difficult decisions that are being made about the patient’s end of life care.

Find out more

• Medical Protection’s Essential Guide to Consent
• Factsheets on capacity and consent