You must give them all the information

The GMC guidance entitled ‘Decision-making and consent’ came into effect from 9 November and is intended to support doctors in having a meaningful discussion with their patients. The MDU’s Dr Kathryn Leask summarises the essential points for independent practitioners.

The GMC’s new consent guidance replaces ‘Consent: patients and doctors making decisions together’ – but it does not represent a radical departure. The need to involve patients in decisions about their own care and treatment remains at the heart of good practice. 

However, the latest guidance reflects changes to case law, notably the judgment in the Mont­gomery case. 

Consequently, there is even greater focus on understanding the concerns and priorities of individual patients, discussing the benefits and harms of treatment options, and answering their specific questions.

Consent forms can be helpful ‘but filling in a consent form isn’t a substitute for a meaningful dialogue tailored to the individual patient’s needs’.

The GMC also hopes that its new guidance will be easier for doctors to apply in everyday practice.

It notes that ‘obtaining a patient’s consent needn’t always be a formal, time-consuming process’ (paragraph 6) and the emphasis should be ‘on the quality of ongoing dialogue between patient and doctor’. 

Principles of consent

The GMC begins by setting out seven principles of decision-making and consent:

1 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. 

2 Decision-making is an ongoing process focused on mean-ingful dialogue: the exchange of relevant information specific to the individual patient. 

3 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. 

4 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. 

5 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. 

6 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. 

7 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.

A proportionate approach

The guidance applies to every health and care decision made with every patient, whether the interaction takes place face to face or remotely. 

It includes decisions about innovative treatments and decisions about mental health, but not consent to disclosure of information – covered in the GMC’s confidentiality guidance.  

At the same time, the GMC accepts the need for a proportionate approach. It acknowledges that not every paragraph will be relevant at all times and doctors will need to apply their judgement in individual circumstances, such as in an emergency.

It also says that, for most healthcare decisions, you can rely on verbal or even non-verbal consent, rather than obtaining a signature; however, you should make sure this is recorded in the notes. 

For example, paragraph 7 states this might be reasonable ‘for some quick, minimally or non-invasive interventions’ like examinations, although you should still explain what you are going to do and why.

Dialogue with patients

The largest section of the new consent guidance (paragraphs 8-49) considers how to have a meaningful dialogue with individual patients. The purpose of this is to:

 Help the patient understand their role in the decision-making process and their right to choose whether or not to have treatment or care;

 Ensure the patient has the opportunity to consider relevant information that might influence their choice;

 Try to reach a shared understanding of their expectations and limits of available options.

Paragraph 10 outlines the information that you should usually provide to a patient about their diagnosis and options – which echoes previous consent guidance. 

Paragraph 13 provides other examples of information that might be relevant, including reference to innovative treatments, bills the patient may have to pay, conflicts of interests you may have and the patient’s right to seek a second opinion.  

The GMC reminds doctors that you ‘should be aware of how your own preferences might influence the advice you give and the language you use’ (paragraph 11).

Don’t pressurise patients 

It says you must explain your reasons for recommending an option for treatment or care and share information about reasonable alternatives, including the option to take no action. Patients must not be pressurised to accept your advice.

There may be circumstances in which you cannot share all relevant information immediately – such as where you are awaiting test results – but the GMC says in this situation you should tell the patient there is more to discuss and ensure arrangements are made to share the information as soon as it is appropriate. 

Information should not be withheld at the request of someone close to the patient or because you are concerned the patient might become upset. Legal advice should be sought if you are considering withholding information for any reason (paragraphs 14 and 15).

The GMC emphasises that meaningful dialogue requires an exchange of information which includes finding out what matters to the patient. 

This means listening to the patient, encouraging them to ask questions and exploring with them their wishes and fears and what activities are important to their quality of life and their expectations. In particular, you should find out what risks an individual patient would and would not be prepared to take to achieve a desired outcome (paragraphs 16-20).

Tailoring discussions

Paragraph 22 and 23 set out what information you should usually include when discussing benefits and harms of different treatment options. It recommends you tailor discussions to individual patients and be guided by what is important to them personally. 

With any medical treatment there will always be an element of uncertainty. While answering patients’ questions as fully as possible, you ‘must be clear about the limits of your knowledge’ and explain if you are unable to answer a question with certainty (paragraphs 25 and 26).

The guidance says you should be alert to signs that patients may need extra support during consent discussions and suggests ways to achieve this, including accommodating their wishes to record the discussion or involve someone else in discussions; sharing information in their preferred format and giving them time to consider their decision, before and afterwards (paragraphs 27 and 28). 

Dr Kathryn Leask (right) is a medico-legal adviser with the MDU