The Association of Anaesthetists of Great Britain and Ireland (AAGBI) has recently reviewed its consent guidelines. They were first published in 1999 and reviewed in 2006, but increasingly patient-centred care and new case law have since provided the catalyst for the new Consent for anaesthesia 2017.
The guidance contains 12 key recommendations, and, while written for anaesthetists, is relevant to all specialties. The document rehearses the fundamental principles of informed consent, providing both helpful references to relevant statute and recent case law, along with practical advice. The new publication refers to, and is consistent with, GMC and Department of Health Guidelines on consent.
The guidelines review the fundamental requirements for valid consent, revisiting issues of capacity and voluntariness and highlighting increased emphasis on information provision. As well as offering context to generic consent advice, the AAGBI Consent guidelines address specific circumstances including children, young people (16 and 17 year olds), advance directives and DNAR decisions.
The 12 key recommendations of the new guidance are summarised below.
- Information about anaesthetic alternatives, risks and benefits should be provided as early as possible, supported by written information. The anaesthetist is responsible for making sure that the information provided is properly understood.
- Do not provide new information immediately before induction (other than in exceptional circumstances).
- Consider what information is required by each particular patient (see below).
- Offer the opportunity to ask questions. Respond fully and record your discussions.
- Note the risks, benefits and alternatives (including no treatment).
- A separate consent form is not required for anaesthetic procedures undertaken to facilitate another treatment.
- Consent is an ongoing process and may require repeated discussion.
- Consent should be sought and documented before each individual component of a treatment course.
- Patients should understand the implications of refusing information about anaesthesia and their position should be recorded and reviewed.
- Any grounds for doubting the presumption of capacity in adults must be documented (Mental Capacity Act 2005). Where capacity is reversible, or temporary, consent should be sought when the patient has capacity, if possible.
- Understand specific legislation and guidance relating to consent for children and young people (16 and 17 year olds).
- Minimise risks associated with opportunities presented by a clinical encounter for training in practical procedures. Specific consent for a trainee to undertake a clinical therapeutic procedure may not be required.
Montgomery and beyond
The most striking recent change in the legal standard for consent is the requirement for doctors to provide the information that the particular patient would wish to know (point 3 above). This standard is considerably more involved than the historic requirements of Bolam, where clinicians only had to demonstrate that a responsible body of medical opinion would have advised in the same manner.
Since the Supreme Court ruling on Montgomery v Lanarkshire Health Board the bar is set much higher, and the ruling in another recent case (Thefaut vs Johnston, 2017) went on to expand on this perspective. Particularly of note was that the particular patient test is a mixture of subjective and objective and that the former requires consideration of the effect that the risk's occurrence would have on the life of the specific patient, as well as emphasising the importance of including non-treatment in discussions of the options.
Applying the guidance
The challenge for clinicians is in establishing what information a particular patient needs, within a limited time and with limited previous knowledge of the patient. These difficulties are exacerbated for anaesthetists, who commonly meet their patient for the first time half an hour prior to surgery, have five minutes to seek consent and whose specialty is technical and perhaps of limited interest to patients.
Ensuring that an information leaflet about risks of anaesthesia is distributed to all patients when they attend the preoperative (usually nurse-led) assessment a week or so before major surgery, so they have time to consider the information before meeting the anaesthetist on the morning of surgery, might help address this difficulty.
Clinicians are already employing strategies to establish what information is required by particular patients. It may be possible to develop more formal algorithms where the provision of information is led by patients' responses to a number of simple questions, as outlined below.
- Do you require a detailed explanation of the anaesthetic process, or a brief outline?
- Would like to know the most likely sequence of events, or rare eventualities?
- Are you concerned about a particular aspect of the anaesthetic process?
- Do you have a job, or role, dream, or purpose that you feel it is important to identify?
Identifying recurrent patterns relating to complaints and claims about consent and focusing on those areas could help to minimise adverse outcomes. On reviewing several hundred MDU files, where anaesthetics was the specialty and consent the main issue, a number of themes emerged.
The MDU experience
Complainants do not always separate anaesthetic from surgical procedures; for example, complaints about anaesthetic consent, when surgical consent was absent and the operation cancelled after the anaesthetic.
It also seems conceivable that the level of acceptable anaesthetic risk is related to the associated surgical procedure and perhaps inversely proportional to its perceived severity. A patient having a complex cardiac procedure might view the anaesthetic as relatively low risk (and of minimal interest) when compared with the surgery, while a patient undergoing a simple, cosmetic or elective procedure may have greater requirement for information about the anaesthetic procedure.
Patients expecting a normal outcome (eg, a pregnant woman) might focus on anaesthetic intervention and require more comprehensive information about anaesthesia. Our data illustrates a significant proportion of complaints relating to consent occur in this group and the majority relate to information provision.
We identified recurrent complaints relating to patients alleging they received a general anaesthetic (GA) when expecting a local anaesthetic (LA) and vice versa, or contending that they were refused their preference for GA or LA, or that LA/regional was converted to GA without adequate discussion.
Several patients raised concerns about inadequate provision of information about the anaesthetic process, as might be the case if a parent complained about their child's inhalation induction when they thought it would be IV.
Patients' understanding of level of sedation they would receive and their surprise at the use of suppositories were recurring themes.
- Regional anaesthesia and other processes
Several cases highlighted limited understanding of the possible side effects of regional anaesthesia. An example of this might be if an athlete alleged that potential damaging side effects after an interscalene brachial plexus block had not been discussed.
Although this is not a matter unique to anaesthetists, several cases highlighted issues raised regarding DNAR orders where families felt that their 'consent' had not been sought.
Clinicians have long been involved in difficult deliberations regarding information provision and consent, as required by professional standards. The AAGBI guidelines reflect the increasingly patient-centred perspective taken by the courts and highlight the legal requirement for the information provided to be tailored to the particular patient.
Establishing the information requirements of individual patients turns on multiple complex factors, including personal characteristics and perspectives on health as well as attitudes to risk. It seems unlikely that attempting to categorise individuals into groups and disseminate information accordingly will be helpful.
Instead, consent should be a collaborative process; a partnership, as advocated by the GMC, where individuals contribute towards the concept of themselves as the particular patient.
For more MDU resources on consent and related issues, see our website or use the tags below.
With thanks to MDU council member Prof. Alan Aitkenhead (BSc MD FRCA) for his assistance with this article.
Dr Jo Nixon
MBChB, DRCOG, MRCGP, MA. Dip Derm.
Jo has been a medico-legal adviser with the MDU since October 2013. Before this she worked as a GP partner, with a special interest in dermatology, in an inner-city London practice for 18 years, and as a clinical complaints and telephone adviser for the MDU.
Jo has an MA in Medical Law and Ethics and was involved in setting up a BSc in Clinical Medical Ethics and Law at King's College London, teaching the applied component for many years. Before entering general practice, she was the medical officer at London Lighthouse, providing care for people with HIV/AIDS as well as working at Holloway Prison.
See more by Dr Jo Nixon