When patients say NO

A patient changes their mind and refuses the recommended treatment. Medico-legal experts Dr Lucy Gibberd and Dr Emma Green discuss some important points on dealing with the situation. 

Doctors may think that when a patient has refused to undergo an operation or a treatment, their obligations finish there, but this is not the case. 

We see complaints every year which arise after patients refused treatment. 

The right to refuse treatment is fundamental in the ethics of modern medicine and in England and Wales the Mental Capacity Act 2005 is the legal basis on which a patient should be assessed as to their ability to decide. 

Providing the patient is found to have capacity and fully understands the proposed treatment options, they can refuse to be treated and are free make what a medical professional may consider to be an unwise decision in relation to their treatment. 

If the clinician considers that the patient may be lacking in capacity, then this must be clarified. If the patient lacks capacity, other options for consent to treatment may need to be considered. 

Case study

Let us consider this case where a patient withdrew consent: 

Mr A was a 72-year-old man on immunosuppressive treatment following transplant surgery. 

He presented with a biopsy-proven, histologically aggressive, squamous cell carcinoma near the bridge of his nose. When he presented for a wide excision, the lesion was not visible to the naked eye, as it had been largely removed by the biopsy. 

This patient questioned why further surgery was necessary and said he did not want to go ahead unless the surgeon could guarantee he would ‘get it all out’.

The surgeon explained he could not make that guarantee and so the patient declined to go ahead with the surgery and opted for ‘close observation’ as an alternative. 

When the cancer later became locally invasive and required majorly disfiguring surgery, the patient complained that his refusal of treatment was not fully informed, as he had not been aware of the possible consequences of refusing surgery.

Civica Medical Billing

The issue in this case is that the patient had initially agreed to the wide excision and only refused to proceed during a discussion in the pre-operative area on the day of surgery.

He was having other skin surgeries that day and the other surgeries went ahead. Because the discussion occurred in the pre-op area, it was not well documented and there was nothing in the notes recording that the patient had been told about the possible consequences of not going ahead with surgery. 

The surgeon in this case clearly could not proceed with the recommended surgery, in the face of the patient’s withdrawal of consent – but what could he have done to avoid a subsequent complaint?

Poorly documented

It is not uncommon for conversations that occur in the pre-op area to be poorly documented. Often the patient is being seen in between cases in the theatre, there may be no facilities to dictate or record a file note, and it may not be obvious where such conversations should be recorded. 

There may also be concerns about the patient’s competence to make a reasoned decision in this situation, particularly if they have been given a premed. 

If a patient refuses treatment in this situation, it is probably better to arrange to meet with them later and have a full, documented discussion about the possible consequences of declining the treatment. 

If the patient does not wish to agree to or attend such a follow-up meeting, then a letter to the patient and GP recording the discussion, the matters set out below and the offer of a follow-up consultation should be sent.

The GMC guidance Decision Making and Consent is clear on the information that should be shared with a patient as part of the dialogue to enable them to decide. It is also clear with regards to the non-disclosure of information.

‘You should not withhold information a patient needs to decide 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. 

Limited exception

‘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.’

Doctors should familiarise themselves with the case of Montgomery v Lanarkshire Health Board [2015] and understand that the consent process should be patient-centred and focus on information relevant to that individual.

Increasingly, doctors are now aware that when they are obtaining consent from a patient to have a procedure or treatment, they must carefully record the possible complications which have been explained to the patient. 

However, when a patient is refusing a recommended treatment, it is even more important that the conversation is carefully documented. 

If you are facing the dilemma regarding a patient refusing treatment, contact your medical defence organisation as soon as possible for advice and support.

See the box above for the key points to remember in this situation.

Dr Lucy Gibberd (left) and Dr Emma Green (right) are medico-legal consultants at Medical Protection