Essential law for GPs: discussing treatment risks

IMG_9619 copyAdam Sandell is a GP in Cumbria, and a barrister at Matrix Chambers.

A Supreme Court judgment last week changed the law about the discussions we need to have with patients about the risks posed by treatment. “Doctor knows best” has just suffered another stroke.

The busy-doctor version: We must discuss with patients any material risks involved in proposed treatment, as well as reasonable alternative approaches. A risk is ‘material’ if the patient is likely to attach significance to it. Ask yourself whether knowing about the risk might alter the patient’s decision: if so, tell the patient about it.

If you’re more interested: Remember the Bolam test? Bolam’s the case about breaching your duty of care. You’re not negligent if you act in accordance with a practice accepted as proper by a responsible body of medical opinion, so long as the practice isn’t nuts.

Until now, Bolam was how the courts determined what we have to tell our patients about the risks of treatment. You didn’t have to discuss a particular risk if there were other suitably-qualified doctors who wouldn’t have done so.

That’s been changed by Montgomery, a Supreme Court case last week.

Mrs Montgomery was small, diabetic and pregnant with a large baby. Her obstetrician didn’t normally warn such women of the risk of shoulder dystocia because she believed the risk of serious harm to be small, and she thought that discussing that risk would result in women deciding to have caesareans when it wasn’t in their interests to do so. Shoulder dystocia occurred during Mrs Montgomery’s distressing vaginal delivery, and her baby was born with severe disabilities.

Things have changed, said the Supreme Court.

“Patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices. … The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation.”

So doctors must now take reasonable care to ensure that patients are aware of any material risks involved in any treatment, and of any reasonable alternative treatments. And this means discussion with patients, not bombarding them with technical information.

Note the words any material risk. What risks are ‘material’? Anything that a reasonable patient in the same situation would ‘attach significance to’, or that you know or should know your patient would attach significance to. That must mean anything that the patient would want to know at the time or that, if she knew it, might result in her making a different decision.

One caveat is that we can withhold information from patients when we reasonably believe that disclosing it would be seriously detrimental to their health. But this will be rare, and probably needs careful consideration, discussion with colleagues, and documenting. In another case the Court of Appeal has distinguished between discussions that may cause some distress and those that are likely to cause physical or psychological harm. The possibility that a patient may find a topic distressing won’t usually justify withholding important information from her.

Comment: While Montgomery was about treatment, it must apply to investigations too, and to decisions not to investigate or treat.

If this feels like a load of extra work, try turning it around. How would you feel if you discovered you’d not been told about treatment risk when, if you had been told about it, you might have chosen a different treatment, or might have decided not to have the treatment?

For GPs, the two risks we most often need to be discussing with patients are probably potential harms from medication, and the risks of decisions not to investigate things, perhaps particularly with more elderly patients. If you’re not discussing the risk of dependence when you prescribe gabapentin or pregabalin, or are opting for a wait-and-see approach with a frail, elderly patient who might have cancer without discussing your thinking with her, you may need to think again.

We’re going to have to get used to discussing things with patients that have gone undiscussed in the past. And, if the courts are a little ahead of the medical profession on this, I’m glad about that. As a patient, I’d want to know: in fact, I’d feel entitled to know. That right is what the Supreme Court has recognised.

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Stephen Gardiner
Stephen Gardiner
8 years ago

So the madness continues.
Just how in the real world that GPs occupy (and the construct of which seems to elude our great legal brains) are we going to find the time or energy to do this?
I think we need a change in the law to insist that before such judgements are made in an ivory tower somewhere in London a real-world effect test should be carried out to consider whether it will work in, for example, an inner-city practice with high consultation rates with patients who have little or no English.
RCGP needs to make a bold and loud statement pointing out how this is unworkable in our world and insisting on change.

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