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When the patient just says ‘no’

By Dr Lucy Gibberd and Dr Ellen Walshe - 14th May 2023

consent

Dr Lucy Gibberd and Dr Ellen Walshe discuss how to proceed when a patient withdraws consent to a treatment or examination

The right to refuse treatment or withdraw consent is stated in the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners:

15.1 “Every adult with capacity is entitled to refuse medical treatment or withdraw consent. You must respect a patient’s decision to refuse treatment or withdraw consent, even if you disagree with that decision. In these circumstances, you should explain clearly to the patient the possible consequences of refusing treatment and, where possible, offer the patient a second medical opinion.”

Adult patients with capacity have the right to refuse treatment, even if their treating clinician thinks this decision is very unwise. If the clinician considers that the patient may be lacking in competence, then this must be clarified. If the patient lacks competence, other options for consent to treatment may need to be considered.

Doctors can think that when a patient has refused to undergo an operation or a treatment, their obligations finish there, but this is not the case. Every year, Medical Protection sees complaints which arise following patients refusing treatment. As an example:

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-op area. The patient 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 later complaint?

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 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, outlining the matters set out below, and the offer of a follow-up consultation, should be sent.

The Medical Council guidance states:

11.5 “You should ask your patients whether they have understood the information you have given them, whether they have any questions and if they would like more information before making a decision. You must answer patients’ questions honestly and as fully as the patient wishes. You must not keep back any information that the patient needs to make a decision unless disclosing the information would cause the patient serious harm. In this context, ‘serious harm’ does not mean the patient would become upset or decide to refuse treatment.”

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

Doctors are now increasingly aware that when they are ‘consenting’ 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 probably even more important that the conversation is carefully documented. Medical Protection would recommend the following:

  • There should be clear written documentation that the patient has been offered a treatment, but has declined it.
  • There should be documentation that the possible consequences of declining the treatment have
    been explained to the patient, including the worst possible outcome.
  • Alternative treatments should be discussed, and the pros and cons of these treatments should be discussed and documented.
  • A follow-up appointment should be arranged to give the patient a chance to reconsider and to again discuss other treatment options.
  • If possible, it is helpful if a relative or support person accompanies the patient to the follow-up appointment, both to support the patient, but also so the family is aware of the choices the patient has been offered.
  • There is no legal requirement for the patient to sign a document saying they have refused treatment. In fact, good contemporaneous notes, where it is clear the patient has been warned of the possible outcome of declining treatment, are probably better than a signed document where this detail has not been clearly laid out.
  • It should be made clear to the patient, that if they were to change their mind in the future and wish to undertake the treatment, whether that may be possible and if so what pathway the patient would follow to achieve this. 
  • Giving the patient written information about the proposed treatment is always helpful and exactly what has been provided should be documented in the notes.
  • If there are any concerns that the patient may not be competent to consent or decline treatment, a formal competence assessment may be advisable.

If you are facing the dilemma of a patient refusing treatment, please speak to your medico-legal defence organisation for advice.

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. The 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.

Dr Lucy Gibberd and Dr Ellen Walshe, Medico-Legal Consultants, Medical Protection

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