Risky Business: When patients ignore the risks

Dr Gabrielle Pendlebury, Medicolegal Consultant at Medical Protection, advises on how best to manage a scenario where a patient doesn’t want to know the risks.

Consent has evolved in the last decade due to some high-profile and costly cases. Doctors need to make sure they gain informed consent and provide patients with the relevant information, so they can make an informed decision. Gaining informed consent also allows the doctor to protect their professional welfare should they need to. However, what happens when a patient puts their full faith in their treating doctor and feels they don’t need to know the risks? When, if ever, is there scope to ignore consent?

Previously, medical paternalism trumped any notion of patient autonomy. In Moyes v Lothian Health Board^[1] in 1990, Lord Caplan gave a summary of how the law believed that the doctor knows best:

When the patient entrusts himself to the doctor, he expects, and is entitled, to be kept fully informed about decisions which are to be taken and which may concern his welfare, but the paramount expectation is that the doctor will do what is best to care for the patient’s health... the doctor, with his own clinical experience and the benefit of the experience of other practitioners, is best able to form a judgment as to what the patient can safely be told in the exercise of medical care.

Montgomery v Lanarkshire Health Board^[2] in 2015 changed all of this. The Supreme Court appeal held that an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and his or her consent must be obtained before treatment interfering with his or her bodily integrity is undertaken. It is therefore the doctor’s duty to ensure that the patient is aware of any material risks involved in a recommended treatment and of any reasonable alternative or variant treatments. The test of materiality is 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 whether the doctor is, aware that the particular patient would be likely to attach significance to it.

There are some exceptions to this test:

• The doctor is entitled to withhold information about a risk from the patient if they reasonably consider that its disclosure would be seriously detrimental to the patient’s health. This exception should not be abused, and the court will be slow to find that a doctor was entitled to withhold information, except in exceptional circumstances. This is known as the therapeutic exception.
• Where a patient requires treatment urgently but is unable to make a decision as they are, for example, unconscious, consent need not be obtained.

In certain circumstances, a patient may feel anxious about the proposed treatment and may decline to hear about the risks. This can place the clinician in a difficult position, as for an individual to provide valid consent for a treatment, he or she must be informed. As noted above, the clinician is required to provide:

• information about the nature of the treatment
• expected benefits
• material risks and side effects
• alternative courses of action
• the likely consequences of not having the treatment.

If the patient refuses to hear about the risks, the decision will not be informed, and their consent may not be valid.

The GMC’s guidance on ‘Consent’ gives a number of reasons for not sharing information with patients (paragraphs 14 and 15)^[3]:

There may be circumstances in which you decide not to share all relevant information with a patient straight away. If you delay sharing information necessary for making a decision, you should let the patient know there’s more to discuss and make sure arrangements are made to share the information as soon as it’s appropriate to do so. You must make a record of the information you still need to share, your reasons for not sharing it now, and when it can be shared.

here may be circumstances in which you decide not to share all relevant information with a patient straight away. If you delay sharing information necessary for making a decision, you should let the patient know there’s more to discuss and make sure arrangements are made to share the information as soon as it’s appropriate to do so. You must make a record of the information you still need to share, your reasons for not sharing it now, and when it can be shared.

You should not withhold information a patient needs to make a decision for any other reason, including if someone close to the patient asks you to. In very exceptional circumstances you may feel that sharing information with a patient would cause them serious harm and, if so, it may be appropriate to withhold it. In this context ‘serious harm’ means more than that the patient might become upset, decide to refuse treatment, or choose an alternative. This is a limited exception, and you should seek legal advice if you are considering withholding information from a patient.

Practical tips

Two-way dialogue – Whether at a consultation, a GP appointment, or in the mix of a surgical procedure, practitioners will need to engage in a two-way dialogue. Decisions should be made on a collaborative basis.

Adequate time set aside - For the consent process to be meaningful, more time will need to assigned to explore why the patient does not wish to know risks and give the patient time to digest the information. This may require more than one consultation.

Clear explanation of risks and alternatives - Not all medical practitioners are eloquent and can clearly explain risks and options to a patient, but this is of paramount importance. The risks of the proposed procedure need to be clearly spelt out. The reasonable alternatives must also be explained, including the option of having no treatment at all. Again, the risks of any alternatives discussed must be explained.

Tailor to individual patients – Looking at patient care on an individual basis is key. Things to consider include:

• Medical records – any relevant medical conditions?
• Any increased risk factors?
• What about the psychological state of the individual?
• What are their family circumstances?
• Does the patient have the capacity to understand?

Keep detailed notes - Document clearly and comprehensibly, as you may need to justify your decision and actions at a later date. Specifically record the consent process including the advice given and the patient’s response by recording both sides of the conversation.

Following the practical tips above will help to protect your professional welfare. However, emotions can intervene in issues of this nature, so it is always helpful and prudent to discuss the matter with your indemnifier, as they can assist in developing a constructive plan that will meet both yours and the patient’s needs.

1 1990 SLT 444

2 [2015] AC 1430

[3]Decision making and consent. General Medical Council. September 2020